Police Discretion and Racial Disparity in Organized Retail Theft Arrests: Evidence from Texas

Abstract

When definitions of two distinct criminal offenses overlap, power to decide which definition to apply to an arrest devolves to local law enforcement agencies. This discretion can lead to unequal treatment and denial of due process, especially when disadvantaged populations are arrested for nonviolent property crimes. We present a Bayesian analysis of arrests under a vaguely worded statutory scheme for retail theft in Texas, in which a shoplifter who is guilty of property theft is also guilty of organized retail theft. Using arrest data from the Texas Department of Public Safety, we find wide variation across law enforcement agencies in initial charging categories, with black and Hispanic arrestees being charged for the more serious crime more often than white arrestees. The racial discrepancy is greater for agencies serving cities with higher per‐capita income. These results highlight consequences of ambiguous provisions of criminal codes and suggest a method for identifying agencies whose policies may have disparate impact across racial and ethnic groups.

Race, witness credibility, and jury deliberation in a simulated drug trafficking trial.

“…Longstanding patterns of racial inequality have been well-documented in the American criminal justice system, disadvantaging people of color. In particular, Black Americans are disproportionally likely to be stopped by police and subjected to searches (Benner, 2002; Fagan et al, 2016; Pierson et al, 2020), to be arrested and charged more severely (Braun et al, 2018; Mitchell & Caudy, 2015), and to be offered more punitive plea offers and sentenced more harshly (Kutateladze et al, 2016). Indeed, scholars have documented how racial bias accumulates across all stages of the criminal justice system, from charging through sentencing (Martinez et al, 2019; Omori, 2019).…”

Racial-Ethnic Disparities in Police and Prosecutorial Drug Charging: Analyzing Organizational Overlap in Charging Patterns at Arrest, Filing, and Conviction

“…As Ulmer (2019) notes, courts are “inhabited institutions,” where agentic actors establish shared practices, such that, even under similar criminal justice policies, distinct practices may emerge out of distinct organizational environments. We focus on the importance of organizational roles and charging practices, as prior research highlights the expansiveness of police (Beckett et al 2006; Braun et al 2018; Dannefer and Schutt 1982) and prosecutorial discretion (Hartley and Tillyer 2018; Shermer and Johnson 2010; Stuntz 2011). Additionally, police and prosecutors may work together as “loosely coupled” organizations (Hagan 1989) in “institutional codependence” to achieve mutually beneficial outcomes (Trivedi and Van Cleve 2020; Richman 2021).…”

“…Despite the more recent attention given to charging practices by prosecutors (Barno and Lynch 2021; Davis 2019; Wright, Levine, and Gold 2021), few studies have focused on the role of the police in initial charging at arrest (Phillips and Varano 2008; Richman 2021). Police determine the initial charges on the arrest report (Braun, Rosenthal, and Therrian 2018; Phillips and Varano 2008), which are then reviewed by prosecutors in case screening and formal charge filing (Johnson and Larroulet 2019; Richman 2021; Worrall, Ross, and McCord 2006). In this way, police also have considerable discretion in their decision-making processes, acting as key decision-makers of front-end charging decisions by establishing charge severity levels that impact downstream case outcomes (Phillips and Varano 2008).…”

“…Charging practices in drug cases may be of particular importance to understanding racial and ethnic inequalities not only because drug crimes tend to be proactively policed in neighborhoods of color (Beckett et al 2006; Lynch 2012), but police also have wide discretion in charging in these cases (Braun et al 2018). Depending on the case characteristics and jurisdictional norms, police can play a key role in the prosecution of drug crimes relative to other offenses since police often serve as key witnesses and produce evidence in such cases (Hodson 2018; Richman 2021), including in Miami.…”

Police reform, austerity and ‘cop culture’: time to change the record?

“…Traditionally police cultural interpretations have linked police autonomy and discretion with a range of negative societal outcomes including the use of force (Ariel et al, 2016), racial bias (Braun et al, 2018) and poor responses to domestic violence (Myhill and Johnson, 2016).…”