Sunday Commentary: Gilligan, Sentencing and the Specter of White Privilege

Share:

On Thursday, Hayley Gilligan plead no contest to a revised charge of voluntary manslaughter, thus avoiding a trial where she would be facing first degree murder charges and where, if she had been found guilty, she would have faced likely 50 years to life (with the use of the gun enhancement).

Instead she will receive a 13-year sentence, which would enable her to be eligible for parole within ten years with the time already served.  Some immediately suggested that such a plea agreement was offered in part due to race.

On Facebook that led to an interesting debate, with one observer stating, “I don’t understand why some people, mostly liberals, have to make everything about race.”

Not everything is about race, but racial disparities are real and we can’t simply ignore them.

Another responded, “This case has nothing to do with race unless you think her plea deal should’ve been longer?”

There is an interesting parallel here to the case of Mohamed Noor, the police officer who was found guilty of third-degree murder and manslaughter in the July 2017 death of Justine Damond, a 40-year-old Australian woman.

Many activists believed that race played a factor in Mr. Noor’s conviction.  The point they made was not that Mr. Noor did not deserve to be convicted for his actions, but rather that similarly situated police defendants, who are white (with black victims), have not been convicted of crimes.

In this case, for sure some people believe Ms. Gilligan should get a longer sentence for her crime.  I am not here to argue either way on that point.  Rather, I am simply pointing out that I believe there is something to the complaint by people of color that white people seem to get off more easily that people of color in the criminal justice system.

That is not to say that white people never are overly charged or convicted – that’s not true.  What we can look toward are aggregate statistics which show that on average there are pervasive racial disparities in the system, and these disparities have persisted across generations.

As the Sentencing Project submitted in April 2018 in a report to the UN: “African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences.”

There is also the 2017 study from Carlos Berdejo of Loyola Law School.  His study looks specifically at the racial disparities in the plea-bargaining process.

While looking at misdemeanor cases in Wisconsin over a seven-year period, he found that white people were 74 percent more likely to have charges either dropped, dismissed or reduced than similarly situated black people.

He also found: “White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime. As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.”

He did find that racial disparities are “greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.”

However, a key intervening role here is criminal history.  “While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors.”

This leads him to conclude that “prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.”

These studies suggest, first of all, that racial factors are complicated to tease out.  But the pervasiveness of the findings, even when attempting to control for both criminal history and the nature of the crime, suggests that ignoring racial disparities in sentencing is fool-hardy, even if we can easily find examples that deviate from the aggregate data.

Beyond race, there is another factor that largely gets ignored in the criminal justice system.  The case of Hayley Gilligan was fascinating from the start, not only because the defendant was a female with no criminal history, not only because she was a deviation in that she was an educated, decidedly middle class woman residing in a low crime community like Davis, but because – at least initially – she claimed self-defense and domestic violence.

The evidence that emerged during the preliminary hearing tended to negate those claims and showed evidence that she attempted to conceal evidence at the crime scene, and misled if not outright lied to investigators.

Still, had she gone to trial, she could have brought forward claims of domestic violence either as an absolute defense or as mitigation against first degree murder charges.

Would she have prevailed?  That we will never know.  But part of the calculation here was the offer of 13 years for a 29-year-old defendant had to play a key role in her decision to take the plea agreement, in a case where she faced 50 to life if she guessed wrong at trial.

The notion of the trial penalty has not gotten nearly enough attention in criminal justice reform.

In her book, “Prisoner’s of Politics,” Rachel Barkow, who will speak at a Vanguard event at the law school on July 10, noted that legislatures have armed prosecutors with the ability to heavily charge defendants in these cases (and in this case, the possible sentence is doubled by a voter approved gun enhancement).

She writes that “legislatures arming prosecutors with a choice of charges and severe mandatory sentences and the judiciary giving them unlimited license to use harsh sentences as leverage to extract pleas—virtually knocked jury trials out of the system.”

Statistical analysis shows that roughly 97 percent of cases plead out before getting to trial. One reason for that is the trial penalty.

Basically, “the defendant received a more severe sentence as a result of going to trial.”

If you are a defendant, let us say you are being charged with questionable charges or you are even innocent. But the charges are such that you face a ten-year prison sentence if convicted. Now let’s say the DA offers you six months.

You have a choice of waiting a year to be tried, with a chance you will receive a ten-year sentence, or you can be assured of being out in six months. Which are you going to take?

Professor Barkow writes: “In the federal system, those who go to trial face sentences three times as long as those who plead. It is thus no surprise that 97.1% of convictions in the federal system are the result of pleas.”

At the state level she adds, “94% of felony convictions are the result of pleas, and those who go to trial similarly face significantly longer sentences, with a mean maximum sentence imposed on state felony convictions after trials of 78 months compared to 29 months after pleas.”

Is this a problem?  Rachel Barkow says yes.

She argues: “With jury trials a rarity, one of the Framers’ central checks on government excess lost its mediating influence.”

Basically the DA has been given the power to leverage away weak cases – unless people are willing to roll the dice and take it to trial.

She writes, “By allowing the government to threaten severe punishments that are far greater if a defendant exercises his or her right to a jury trial, the Supreme Court has weakened the jury power to the point that it exercises little restraint on the government.”

In the case of Hayley Gilligan, we can be troubled by the idea that perhaps a person of color in the same position as Ms. Gilligan would not be able to get out of prison nearly as quickly.  But we can also be troubled by the fact that, while the evidence seemed very strong against Ms. Gilligan at preliminary hearing, we never got to see her make an affirmative defense.

In a system where the difference between going to trial and taking a plea wasn’t 37 years, perhaps we would be better able to assess what sentence would have been the fair one.

—David M. Greenwald reporting reporting


Enter the maximum amount you want to pay each month
$USD
Sign up for

Share:

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

Related posts

34 thoughts on “Sunday Commentary: Gilligan, Sentencing and the Specter of White Privilege”

  1. Jim Hoch

    As you often do you have completely ignored reality in favor of your favorite political issue.

     

    While there is a disparity between men of different races it is dwarfed by the disparity between men and women. Women consistently receive dramatically lighter sentences for the same crimes.

    1. Bill Marshall

      And there is possibly another factor than race… perception of attractiveness of the accused… for some, the two may be related… could also account for your observation of male vs. female… likely a different outcome in the current case, had the accused been “a fox” (another poster postulated something to that effect, different thread, same case).

      Looks like a multi-variable issue, as to charging, plea bargains offered, results at trial, incarceration…

      Does anyone really think OJ did not kill Nicole and Ron? [if so, have an option on a steel structure connecting Manhattan and Brooklyn… on sale now for $60 million… limited time offer!]  Black man, attractive, sports hero, sports commentator, tried right after the Rodney King atrocity… but innocent?

      Yes, he was arrested, in custody for quite awhile until the trial played out…

      Looks to me that there are many more variables than ‘race’!

    2. Craig Ross

      Jim Hoch is a master of deflection.  Take an issue that’s important, and divert attention by raising another issue.  Maybe Jim can get us the empirical data on the difference between white women and black women

  2. Craig Ross

    Bill – the article acknowledged it was a complex issue.  But I think most people of color feel that if this were a POC, the defendant – male or female – would have never been given a 13 year sentence offer.

    1. Bill Marshall

      Acknowledged… but the drift I was getting was ‘one‘ variable… just because there are many, doesn’t mean any one is not real...

  3. Rik Keller

    http://www.law.umich.edu/newsandinfo/features/Pages/starr_gender_disparities.aspx

    “If you’re a criminal defendant, it may help—a lot—to be a woman. At least, that’s what Prof. Sonja Starr’s research on federal criminal cases suggests. Prof. Starr’s recent paper, “Estimating Gender Disparities in Federal Criminal Cases,” looks closely at a large dataset of federal cases, and reveals some significant findings. After controlling for the arrest offense, criminal history, and other prior characteristics, “men receive 63% longer sentences on average than women do,” and “[w]omen are…twice as likely to avoid incarceration if convicted.” This gender gap is about six times as large as the racial disparity that Prof. Starr found in another recent paper.”

     

     

    1. Rik Keller

      Based on Starr’s studies, is a more accurate headline “the Specter of Female Privilege”?

      If average sentencing was found to about 10% longer for African Americans than Whites, but about 63% longer for men than women, it would seem that the article missed the major factor in sentencing disparities entirely.

    2. Rik Keller

      It should be noted that Starr’s studies involve a more thorough analysis than other studies that just look at the end product of sentencing in isolation:

      “There are other studies that have shown gender disparity in criminal cases, but not as pronounced as Prof. Starr’s findings. This is because she is looking at “a larger swath of the criminal justice process” in her analysis, she said. The paper states, “Existing studies have typically focused on single stages of the criminal process in isolation”—in particular, the judge’s final sentencing decision. These studies compare actual sentencing outcomes after controlling for the recommended sentence associated with the defendant’s ultimate conviction. The problem with this, Starr explains, is that “the key control variable is itself the result of a host of discretionary decisions made earlier in the justice process”—including prosecutors’ charging and plea-bargaining decisions. Starr’s research incorporates disparities found at those earlier stages, and finds that “more disparity is introduced at each phase of the justice process.””

      1. Craig Ross

        Three problems here.

        First, this is federal data

        Second, Rik keeps calling it recent, but the study is from 2012, and the data used is far older

        Third, Rik is using this study rather than the Sentencing Commission, the leading authority on this, who looked at state data, and whose data is much more recent.

        1. Craig Ross

          One reason why Rik’s improper use of data is problematic, is that the Sentencing Commission finds a much broader gap between whites and blacks, that the professor from Michigan did at the federal level.

          ”Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied.”

        2. Craig Ross

          The gap between women and men was found to be 33-34 percent.  So it is wider than the race gap, but nowhere near what Rik is saying.

    3. Rik Keller

      Despite devoting a great deal of time and energy to covering the court system,  it is very problematic that Greenwald seems to be completely unaware of  (or is purposely ignoring) the literature on gender inequalities in criminal justice and sentencing outcomes.

      It is also problematic that Greenwald cites studies like “Criminalizing Race: Racial Disparities in Plea Bargaining” (Boston College Law Review, Vol. 59, 2018 ) but does not emphasize key summary findings that would be applicable in this Gilligan felony case such as “Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.” This funding calls into question the article headline and premise.

      1. Craig Ross

        From David’s article: “He did find that racial disparities are “greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.””

        Did you read this article carefully before criticizing???

      2. Bill Marshall

        Slightly off-topic, but you ‘opened the door’, Rik…

        the literature on gender inequalities in criminal justice and sentencing outcomes.

        Are there ‘gender inequalities’ in compensation, for equal work done, @ equal competency?

        Are there ‘gender inequalities’ in commissions of crime, particularly serious felonies?  Rape, murder (this topic is a case in point, as the narrative to date is that it went very far beyond “voluntary manslaughter”, and yes, there is at least a double entendre in the last term… what has been publicly revealed is that a man was slaughtered), etc.?

        I suspect Patty Hearst got off pretty easy, due to race, gender, and coercion by the other violent folk in the SLA… and her famous name/lineage… look at the outcomes for other folk captured, tried and convicted in the (arguably) capital crimes she was a part of.

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

  4. Rik Keller

    Craig Ross: what part of Greenwald deemphasizing that particular quote do you not understand? Why does he have a provocative headline that contradicts what that study says? And why has he completely ignored gender disparities?
    [edited]

    Craig: what is your exact role at the Vanguard? You assisted at the recent fundraiser. Are you paid or just a volunteer?

     

    1. Craig Ross

      If you read the commentary, he emphasized the bottom line on defendants with no priors over the other data point you are emphasizing.

      The problem is you have made everything about honesty here.  It’s not about honesty, dishonesty.  These columns are not academic pieces, they are 800 to1000 word opinion pieces and you’ve turned everything into a dissertation.

      I don’t have a role with the Vanguard, I post here, I support the work that David does.  That’s it.

    2. Rik Keller

      If the study that Greenwald cites stated that there is minimal to no racial disparity in plea bargains in felony cases, then why does the headline emphasize “the specter of white privilege”? And why is there not a single line in the short article that mentions the actual “specter” of female privilege?
      [edited]

  5. Ron Oertel

    Rik:  “If the study that Greenwald cites stated that there is minimal to no racial disparity in plea bargains in felony cases, then why does the headline emphasize “the specter of white privilege”?”

    Because as Jim pointed out, that’s what David prefers to write about (and perhaps because it’s attention-grabbing).  Regardless of whether or not it applies in this case.

    1. David Greenwald

      Why doesn’t it apply?  Just because there is a gender disparity, doesn’t mean that there isn’t a racial one.  The statewide data that Craig posted shows that the gender disparity is not much wider than the racial one.  The reason for this column was that race not gender was the discussion on Facebook where this discussion originated.

      1. Ron Oertel

        David:  “Why doesn’t it apply?  Just because there is a gender disparity, doesn’t mean that there isn’t a racial one.”

        It doesn’t mean that either disparity was a factor, in this case.  It’s like concluding that a single example of weather is proof (or disproval) of climate change.

        I’m not even sure if this case involved “leniency”, one way or another. One would have to compare it to similar cases.

        I see that some other responses (e.g., from another commenter) were deleted.

        1. Ron Oertel

          Strange, that you previously claimed to be a “person of color” (and are now apparently suggesting that you can speak for all persons of color), but have no concerns about this (in regard to Aggie Square – as per the article previously provided a link to):

          “Some black residents are particularly angry about having to move out of Oak Park and into cheaper neighborhoods further away. This sense that a historically black neighborhood will be gentrified beyond recognition runs through the discord that’s surfaced at City Council meetings in the wake of the police shooting of Stephon Clark.”

          https://www.sacbee.com/opinion/editorials/article209312279.html

          Seems that your concerns are rather selective, when it comes to skin color.

        2. Rik Keller

          Craig Ross does not have good grasp of the literature he cites—cherry-picking some findings and ignoring others—nor does he understand other key research done in this field. He keeps trying to discount  the University of Michigan  studies. “There are other studies that have shown gender disparity in criminal cases, but not as pronounced as Prof. Starr’s findings. This is because she is looking at “a larger swath of the criminal justice process” in her analysis, she said. The paper states, “Existing studies have typically focused on single stages of the criminal process in isolation”—in particular, the judge’s final sentencing decision. These studies compare actual sentencing outcomes after controlling for the recommended sentence associated with the defendant’s ultimate conviction. The problem with this, Starr explains, is that “the key control variable is itself the result of a host of discretionary decisions made earlier in the justice process”—including prosecutors’ charging and plea-bargaining decisions. Starr’s research incorporates disparities found at those earlier stages, and finds that “more disparity is introduced at each phase of the justice process.””

        3. Craig Ross

          Funny that Rik should say that because it appears he has simply googled his topic, found something that agrees with him and posted it.  He continues to ignore the more relevant Sentencing Commission work which is the current gold standard and continues to site research referencing federal courts which is not necessarily applicable without explaining why he has done that.

  6. Ron Oertel

    From article:  “On Facebook that led to an interesting debate, with one observer stating, “I don’t understand why some people, mostly liberals, have to make everything about race.””

    So, I saw this Facebook posting, and saw that the response above was based upon someone (sarcastically) stating “White Power” (in regard to David’s posting, regarding the plea deal).

    And yet, David (solely) focused on the response to it, quoted above.  And later noted that this person wasn’t his “Facebook friend”.

    Make of that what you will.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for