information into categories leads inevitably to some prejudgment based upon our perceptions of those groupings. Stereotypes have been defined as the “general inclination to place a person in categories according to some easily and quickly identifiable characteristic such as age, sex, ethnic membership, nationality, or occupation, and then to attribute to him qualities believed to be typical of members of that category.”90 Schemas are best described as the preconceptions that define category members.91 A schema is a piece of knowledge that represents an “averaging” of specific items or events.92
The research of cognitive psychologists suggests that negative stereotypes about other races and ethnicities can develop early in our lives and become deeply rooted in our minds.93 The interrelationship among self-identity, social identity, and racial beliefs is so complex that a person’s beliefs about different races, once developed, are highly resistant to change. Of course, stereotypes about groups tend not be any more accurate than any other type of generalization94 because they represent oversimplification of complexities.95 But we tend to rely on them and, at times, to be prejudiced by them in making complex discretionary decisions.
Not all categories lead to intractable stereotypes. Some categories are held tentatively and the individual remains open to information that is inconsistent with the stereotypical category. Nonetheless, in most instances, categories stubbornly resist change.96 Moreover, in the case of racial and ethnic stereotyping, “people tend to hold to prejudgments even in the face of much contradictory evidence.”97 Cognitive psychologists further explain that learning processes are facilitated by the development of schemas—mental constructs that facilitate the processing of new, unfamiliar stimuli by comparing them to familiar ones and drawing conclusions about the new based on what the person knows about the familiar.98 All of this creates certain strong perceptions about race and behavior.
Individuals tend to make judgments about people using their learned categories as contexts for making such judgments. These judgments are often interpreted to coincide with the prevailing schema.99 When a criminal conviction is added, the tendency to stereotype becomes overwhelming. Given the images in the media, the news, and popular culture—which often portray people of color as dangerous criminals—it is not hard to imagine why an individual would make presumptions about someone applying for a job or seeking housing. Because prejudice based on race is a difficult issue to parse, legislative and administrative protections that limit the types of permissible background inquiries tend to be less than effective.
Assumptions about the criminality of African Americans are widespread.100 The number of race-related judgments that a particular individual will make is determined by intrapersonal factors, including social identity,101 myths about “legitimate racial differences,”102 and self-esteem maintenance.103 Jody Armour cites a 1990 study suggesting that over 56 percent of Americans perceive Blacks as prone to violence.104 Moreover, while other ethnic minorities are also stereotyped as crime prone, the stereotype of African American criminality tends to be bolstered by the media. Consumer discrimination research vividly describes the extent to which African Americans are targeted by the commercial retail industry for surveillance on the assumption that they are more likely to be engaged in criminality.105
These same beliefs about criminality and dangerousness do not exist with white-collar criminals—who are predominantly not people of color. The term “white-collar crime” was coined by Edwin H. Sutherland, and the definition has as much to do with class as it does with crime because of the particular forms economic inequality have taken in the United States.106 Sutherland himself suggested that the stigma associated with a white-collar criminal is much diminished as compared to that associated with other criminal conduct.107 Although a wide range of conduct seems to fall into the white-collar category,108 and a range of harms is included, the criminal stigma does not attach as quickly and white-collar offenders are often well assisted in their reentry into society.
Commentators rarely question whether white-collar offenders should immediately return to their communities, even when their conduct may have done far more harm than so-called street crime. Defendants of color from inner-city communities are most often presumed to be prison bound even before conviction; their eventual reentry is more often impeded by all of the players in the criminal justice system. From the prosecutor who charges, plea bargains, and recommends prison to the probation officer who compiles the probation report, the entire process is stacked against the person of color’s rehabilition and reentry. In addition to the criminal justice participants, the defendant charged with a street crime must also overcome immense obstacles, such as employment bans, education-grant ineligibility, and denial of housing and social welfare benefits.
Non-White defendants sentenced by judges of a different race and/or ethnicity are frequently used as opportunities for exemplification. Judges in these circumstances objectify the defendant and focus more on the crime in making the sentencing decision than on the circumstances that led to the crime. The exact opposite happens when the defendant is a white-collar defendant, and even more often when the defendant is of the same race as the judge. In those instances, the court is willing to examine a wider range of factors in making sentencing decisions. White-collar criminals have often been described by judges as some of the most difficult offenders to sentence.109 Judges describe the need to “look past the crime,” to look at the defendant’s “whole life and his place in society.”110 This becomes easier when race is not an issue, as is often the case in white-collar sentencing. In those settings race does not carry the negative impact that it does in other (nonviolent) sentencing. Arguably, this wider range of factors and alternatives should be considered in all cases. This is instructive as we contemplate the issues surrounding reentry.
In the white-collar scenario a number of alternative punishments have been explored. Some suggest shaming is enough of a punishment for white-collar criminals. Judges are willing to impose the least punitive sentence because judges are willing to believe that less drastic steps will have a significant impact on white-collar offenders. The negative impact of a loss of social status, when the defendant is upper middle class, is given great weight in the sentencing process. The notion that incarceration is “too far a fall from grace” to be fair is presumed before sentencing.
Defendants of color are not generally given the same benefits of social status as White defendants, even if they have never been incarcerated or committed a violent offense. In the instance of a first-time offender of color in a drug case, we rarely hear that shaming would be appropriate. Some argue that white-collar crimes involve situations where victims are hard to identify and harm is difficult to quantify. In addition, the “rationing of corrections space” also becomes a factor when white-collar criminals are to be sentenced. In cases involving nonviolent offenders that are of a different class, race, or ethnicity than the sentencing judge, officials seem more apt to suggest building more prisons than to suggest rationing existing beds.
Judges and prosecutors are more willing to take into account the circumstances of white-collar defendants’ lives than those of defendants who have had access to far fewer opportunities, perhaps because they can see themselves in the face of the offender. One need only look to the treasurer of Enron, Lea Fastow. In a case involving six felony counts, prosecutors sought to enforce a plea bargain wherein Ms. Fastow could serve a sentence of five months in custody and five months at home caring for her children.111 This would allow her to stagger her sentence with her husband’s sentence.112 The judge hearing the case refused to be bound by the deal, given the severity of the charges. The judge indicated that he would probably impose a sentence of ten to sixteen months.113 Prosecutors seeking to placate Ms. Fastow dismissed all six felony counts and allowed her to plead to a misdemeanor, prompting one commentator to describe the deal as “indicting someone for bank robbery and knocking it down to spitting on the sidewalk.”114
Prosecutor assistance in the Fastow case is the type of assistance that defendants need in order to
