Observing Gender and Race Discourses in Probation Review Hearings

Abstract

Much of the prior court literature has demonstrated gender and racial disparity exist across various decision-points. Less understood are the processes that produce this disparity, particularly in problem-solving courts. This article utilizes 100 observations of probation review hearings in three domestic violence courts to examine how judges, probation agents, attorneys, and probationers construct a probationer’s non-compliance. Using a critical discourse analysis approach, the author examined how probationers and their actions are constructed based upon gender and racial discourses. Gender differences in parenting responsibilities, mental health, and domestic violence discourses emerged, with racial differences in responsibility and mental health discourses.

Keywords

race gender court processing discourse symbolic interactionism

Although there has been substantial quantitative research into racial and gender disparities across court processing (e.g., Feldmeyer & Ulmer, 2011; Holleran & Spohn, 2004; Spohn, 2000; Steffensmeier & Demuth, 2001; Ulmer et al., 2016), fewer qualitative studies exist. Most common approaches in the quantitative literature for examining disparities include testing the effects of defendant race, gender, and other background factors (e.g., age, family status) net of legally-relevant factors. In general, these studies find that racial and gender disparities exist and may compound across processing points (e.g., Hauser & Peck, 2017; Spohn et al., 2014; Steffensmeier & Demuth, 2001). Contextual factors indicative of racial and ethnic threat also are commonly found to influence sentencing decisions, albeit in complex ways (e.g., Feldmeyer et al., 2015; Wang & Mears, 2015).

Qualitative studies can shed light into the processes of disparate treatment and underlying power dynamics that quantitative analysis alone cannot (Baumer, 2013; Ulmer, 2012). Indeed, Ulmer (2012) noted that common approaches to theoretical tests often fail to include direct measures of the mechanisms that are said to produce disparity. Much of the seminal literature examined the processes of courts as distinct communities with unique power-relations, shared norms, and patterned outcomes and is dated (e.g., Nardulli et al., 1988; Ulmer, 1997). Many of these earlier studies examined the construction of case facts, circumstances surrounding the case, and defendants and victims by relying on symbolic interactionism (Feeley, 1979; Worrall, 1990) or discourse analysis (Frohmann, 1998; Merry, 1990). More recent work builds on these seminal studies to uncover the everyday practices within lower courts that reify social inequalities (Van Cleve, 2016) and discourses used to construct defendants in judicial decision-making (Gathings & Parrotta, 2013; Travers, 2007). Examining the everyday practices of court actors and defendants in hearings allows for a greater understanding of what factors are viewed as important indicators of culpability, accountability, and potential for rehabilitation, how judges process this information, and why judges arrive at their decisions.

Few studies have qualitatively examined problem-solving courts (e.g., Ray & Dollar, 2013; Travers, 2007), yet the continued growth of non-traditional forms of case processing warrants investigating whether the power-relations, discourses, and shared norms found in traditional courts may extend to these courts. Further, domestic violence courts often have minimal guidelines for sanctioning defendants for non-compliance (Labriola et al., 2010b). With increased discretion, judges in these courts may rely on cultural scripts that reify gender and racial inequalities when making decisions on whether to admonish or sanction. The purpose of this article is to examine the interactions of court actors and defendants during probation review hearings in domestic violence courts to uncover discursive practices that may reproduce gender and racial inequalities through reliance on racial and gender discourses of domestic violence, mental health, and responsibility. If gendered and raced discourses exist in these courts, it would suggest that similar findings in juvenile courts and mental health courts are not specific to traditional courts and may be common across various types of specialty courts (Ray & Dollar, 2013; Travers, 2007).

Case Processing as Symbolic Interaction With Discursive Processes

Prior literature on court processing often examines the reproduction of racial and gender disparity through social worlds frameworks in which law is enacted, negotiated, and interpreted through patterned social interactions of court actors (e.g., Nardulli et al., 1988; Ulmer, 1997). Other disciplines approach the study of court processing through a Foucauldian discourse framework, examining the process through which power is constituted in defining events, disputes, and individuals with the worldviews used to make sense of, or frame these events and individuals (e.g., Chaemsaithong, 2018; Conley & O’Barr, 2005; Merry, 1990). Although these approaches may be viewed as divergent, both are rooted in social constructionism (Snow, 2001).

Indeed, informal norms are patterned practices developed from ongoing interactions amongst court actors (Nardulli et al., 1988; Sudnow, 1965). These court actors attribute meaning to (or socially construct) defendants’ actions, demeanor, and the nature of the offense or infraction, which are rooted in previous experiences and cultural references, or toolkits of meanings, including primary frames of gender, race, age, and class (Blumer, 1969; Blunter, 1994; Goffman, 1981; Ridgeway, 2011; Sudnow, 1965). These concepts of cultural references correspond to Foucault’s concept of discourses, which renders individuals knowable, reproducing structural inequality through everyday institutional power roles and practices (Foucault, 1980). Other scholars have used the concept of discourse to examine court practices in juvenile courts (Gray & Salone, 2006; Travers, 2007), sexual assault case processing (Conley & O’Barr, 2005; Frohmann, 1991), and within the realm of probation (Worrall, 1990). This article integrates these theoretical approaches in examining how probationers and their actions are socially constructed in probation review hearings.

One important caveat to the study of court processing is most of the literature has focused on traditional courts. In these settings, judges are faced with high caseloads and limited time to fully examine each case; therefore, judges tend to make decisions quickly and with imperfect information (Albonetti, 1991). Further, the philosophies of punishment that a given judge may focus on vary. In problem-solving courts, however, caseloads are smaller by design, judges meet more frequently with defendants to determine treatment progress, and they have access to much more detailed information about defendants. Often there are weekly meetings between case managers, treatment providers, attorneys, correctional agents, and judges, which provide detailed information about offender progress and compliance with court conditions (Jeffries & Bond, 2013; Ray & Dollar, 2013). Finally, problem-solving courts are distinguished by their reliance on therapeutic jurisprudence and emphasis on rehabilitation of offenders (Worrall, 2008). Domestic violence courts are unique among problem-solving courts in that some process defendants similar to traditional courts, with higher caseloads and an adversarial approach, while emphasizing offender accountability and victim safety through reliance on probation and mandated batter intervention programing (BIP; Healey et al., 1998; Worrall, 2008).

While there are differences between these types of courts, judicial decisions in problem-solving courts may suffer from the same reliance on stereotypes and “subjective appraisals” from other court personnel that frame a defendant’s non-compliance as responsible or irresponsible (Ray & Dollar, 2013, p. 663). Prior research in problem-solving courts has found that judges are guided by the same focal concerns as those operating in traditional courts with distinct differences in how men and women defendants’ non-compliance is framed (Ray & Dollar, 2013). Similar neoliberal discourses of deserving and undeserving poor have emerged when comparing juvenile courts in Australia and misdemeanor courts in Cook County, Illinois (Travers, 2007; Van Cleve, 2016). Therefore, it is plausible that while some discourses may be somewhat unique in particular problem-solving courts (e.g., domestic violence within these courts); larger discourses surrounding responsibility and criminality may extend beyond a particular court under observation.

Gender Discourses in Court Hearings

One area of research on discursive practices examines how men and women defendants are talked to and talked about within the context of court hearings. Ray and Dollar (2013) examined whether the focal concerns discourses extended to a mental health court in a southeastern county. They found differences in how men and women’s non-compliance was framed by court staff. Namely, men’s non-compliance was stated without further explanation or mitigation proffered while women’s non-compliance was often constructed within the context of relationships to parents, partners, and children. In this sense, paternalistic discourses of women were drawn on to make sense of, or construct, their non-compliance in mitigating ways that often benefitted them compared to men. Given the context of the mental health court, it could be that women’s non-compliance is viewed in relation to gender discourses of mental health. By contrast, Gathings and Parrotta (2013) noted that both men and women defendants were able to construct their identities as fitting gendered expectations. Indeed, men, with the help of their attorneys, were able to construct themselves via gender discourses as providers—both in providing economic stability to the family and though being a “good” father. Women similarly relied on domesticity discourses in framing themselves within proscribed gender expectations.

Other research has focused on women as defendants and probationers, examining differences in the construction of their actions and identity. Worrall (1990) noted judges, attorneys, and psychiatrists relied on femininity discourses of domesticity, sexuality, and pathology, viewing these women as “good” or “bad” mothers/wives, “pious” or “promiscuous” women, and “sick” or “manipulative” when constructing women probationers’ actions. More recent work also finds this contrast of gender discourses of women offenders between patriarchal ideas and viewing women who violate White, middle-class norms as doubly-deviant or sick (e.g., Dasgupta, 2002; Smart, 1995). Mann et al. (2014) similarly found femininity (e.g., domesticity, victimhood) and doubly-deviant discourses were used to socially construct women defendants convicted of drug offenses in New Zealand. Like Ray and Dollar (2013), they found that women’s deviance at times was constructed within the context of men as exerting bad influences, thus mitigating their culpability. Yet when women violated proscribed gender roles, were constructed under doubly-deviant (e.g., manipulative, masculine) discourses.

Racial Discourses in Court Hearings

Less commonly examined is the intersection of race and gender identity in constructing defendants’ actions. Jeffries and Bond (2013) observed sentencing hearings for women defendants in an Australian court. They found that judges weigh focal concerns of blameworthiness, recidivism risk, and practical constraints differently for Indigenous women compared to non-Indigenous women. In particular, non-Indigenous women were viewed as culpable for their crimes more often due to a failure to take responsibility for their situations (e.g., past trauma, substance use issues). Indigenous women, however, were often viewed as less at risk for recidivism due to having stronger connections with their cultural community, as well as making a stronger positive impact on their community and children. This is congruent with quantitative findings in Australian courts (e.g., Bond & Jeffries, 2010), yet are in contrast with quantitative work on selective chivalry (e.g., Farnworth & Teske, 1995; Romain & Freiburger, 2016), and raced conceptions of patriarchal control more generally (Dasgupta, 2002; Gilbert, 2002). Few qualitative studies have examined the intersection of race and gender among men defendants, yet the broader literature suggests that men of color are often framed as more dangerous and culpable for their crimes, as well as having less practical constraints than Whites and women of color (Russell, 1998; Steffensmeier et al., 1998; Travers, 2007; Van Cleve, 2016; Wacquant, 2010). In Steffensmeier et al.’s (1998) study, judges stated that Black men were viewed as more able to “do time” than White men and women generally when considering childcare constraints and stereotypical assessments of survivability in prison.

The Current Study

Although there is a building interest in examining court processing qualitatively, much of the literature is dated and few examine processing in non-traditional problem-solving courts (e.g., Ray & Dollar, 2013; Travers, 2007). Beginning in the 1990s, problem-solving courts have grown steadily, with over 200 domestic violence courts in the United States today (Labriola et al., 2010a; Lucas & Hanrahan, 2016). Given the growth of problem-solving courts, examining the processes of decision-making and discourses used in these courts will demonstrate whether commonly found gender and racial discourses in traditional courts extend to these specialty courts. Therefore, this study seeks to add to the current literature though participant observation of probation review hearings of domestic violence offenders. These hearings provide a unique insight into the discourses that judges, probation agents, defense attorneys, and probationers utilize, as well as the interactive process through which probationers’ actions are socially constructed in determining whether a jail sanction for non-compliance is warranted. The following two research questions guide this investigation:

Are there differences in how probationers’ actions are framed based upon race and gender?

How do race and gender discourses become manifest in talking to and about probationers during review hearings?

Methodology

Setting and Data

Research within criminology has begun to qualitatively examine the ways in which gender and racial disparity become manifest through the everyday decision-making in criminal courts (e.g., Gathings & Parrotta, 2013; Jeffries & Bond, 2013; Mann et al., 2014). This line of research examines hearings as the site in which gender, racial, and other discourses are drawn upon to construct defendants (i.e., identity work) and facts (i.e., manipulate, mobilize) about a case (Feeley, 1979; Gathings & Parrotta, 2013; Mann et al., 2014). Therefore, the study of everyday institutional talk and power roles is imperative to investigate how the process of decision-making may reproduce disparities.

The author observed probation review hearings for domestic violence cases over an 8-month period in 2016 in a large, urban Midwestern county. The county itself has a history of developing innovative responses to domestic violence, including early adoption of programs and policies such as mandatory arrest, specialized domestic violence courts, and review hearings for domestic violence probationers. In this jurisdiction, three courtrooms operate as domestic violence courts, which oversee cases of intimate partner violence, family violence in shared housing (i.e., adult siblings, adult child, and parent), and child neglect cases. Due to judicial rotations and sick leave, two additional judges were observed, with a total of five judges within the three courts. In addition to specialized courts, the local prosecutor’s office and public defender’s office have specialized units or teams that work solely on domestic violence cases. Therefore, in this jurisdiction, domestic violence courts operate under a courtroom workgroup, as attorneys and judges develop familiarization with one another and informal norms for processing of cases (Ulmer, 1997; Walker, 2011).

Most defendants with limited criminal histories in these courts are sentenced to probation with the purpose of providing rehabilitation through batter’s intervention programing (BIP) and addressing any underlying risks or needs identified through pretrial screening assessments (i.e., anger management, alcohol, and other drug abuse (AODA) screening and services, employment). Historically there was no measure of accountability for domestic violence probationers to ensure compliance with these conditions and victim safety. Within the last 10 years, judges decided to enact a policy of requiring every probationer to attend a review hearing with their probation agent approximately 60 days after sentencing. These hearings, scheduled on Friday afternoons, allowed judges information on offender progress before determining whether to sanction for non-compliance. The hearings themselves began with judges asking probation agents for any updates or additions since submitting a compliance report, followed by an exchange between judges, probationers, defense attorneys (if present), and probation agents discussing the issues presented by agents. Therefore, issues are not presented in a vacuum, but are contested, framed, and managed by contextual information (Feeley, 1979). Approximately 15 to 40 cases were scheduled on the docket for each review hearing, with hearings typically lasting under 10 min. These hearings are the source of data for this study, for a total of 27 hr of observation.

The hearings selected for this article emerge from a larger mixed methods study of decision-making in domestic violence courts. A purposive sample of 100 information-rich hearings were selected for qualitative analysis out of the 350 total hearings observed in which a probationer had been non-compliant with at least one aspect of probation. As recommended by Waitt (2010), the author disproportionately sampled under-represented cases, including women and White men in order to meaningfully compare across social locations. Of the 100 cases selected, 21 were women and 79 were men; 65 were Black, 18 were White, 16 were Latinx, and 1 was Asian. All judges were White, and three of the five judges were female.¹ Sanctioning within these courts was less common, with only 58 of those sampled ordered to a jail stay. For those jailed, the length of incarceration ranged between 2 and 30 days, with most cases involving shorter periods of incarceration (i.e., 2–7 days).

Extensive field notes were taken during hearings, capturing a description of the courtroom including the physical and social setting of these hearings, who was present, and demeanor of the probationers, judges, and probation agents. The author captured exchanges between court actors and probationers verbatim to the extent possible, including capturing tone, inflection, pauses, and silences. Field notes comprised 2.5 notebooks, which were typed into a word processing document for analysis with Nvivo.

Analytical Framework

Critical discourse analysis was used to examine the ways in which courtroom talk reproduced structural inequalities through social interaction of court actors and probationers. Discourse analysis is concerned with the interplay between knowledge, power, and persuasion (Fairclough, 1993; Van Dijk, 1996; Waitt, 2010). After hearings were transcribed, the analysis began with descriptive coding of common phrases and words, affect toward probationers (e.g., terse tone, sarcasm, sympathy), who spoke, turn-taking (e.g., question, response, interruption, diatribe, silence), and knowledge references (e.g., bench experience, scientific studies; Jackson, 2001; Waitt, 2010). Sections were coded based on topic discussed within the hearing, rather than line-by-line, in order to capture interaction, framing (i.e., social construction) of issues, and contestation of these framings (Fairclough, 1993; Waitt, 2010).

Through an inductive approach, initial patterns were identified in phrases and terms used, thinking critically about deeper meanings, and positing the ways in which factors such as family status, gender, and race/ethnicity might be inter-related in the social construction of a defendant. The process of analytical coding also included determining ways that keywords were related and reflected key discourses as discursive repertoires. Discursive repertoires are “cultural resources everyday speakers may use” (i.e., rhetoric) when talking about court cases to attribute meaning to past and future behaviors (Jackson, 2001, p. 208). The author focused on the ways in which discourses of domestic violence and additional discourses emerged as worldviews in case processing. The ways in which probationers, judges, and probation agents frame probationers’ actions and rhetoric used in making sense of these actions reflect the discursive repertoires and dispositions used by judges, which ultimately influence their decision-making practices (e.g., sanctioning). At times, deviant cases were found—primarily in situations where probationers were successful in challenging and re-framing a non-compliant act. These deviant cases constituted successful power challenges, and were categorized by the method of turn-taking and discursive repertoires used. Additional deviant cases were compared to overall patterns.²

Throughout the research process, the author engaged in reflexive memoing about her position as a younger White female academic, with a family history of intimate partner violence and an interest in social justice. This background influences the types of research questions asked in this study as well as the broader research direction of the author. During court observations, my presence in the courtroom was largely ignored with the exception of one attorney alluding to having an “audience” at the end of the day. Given my outsider status, insider knowledge that judges and probation agents have on a particular case are only alluded to in the statements they utter. Therefore, there are limitations in bridging the gap between insider and outsider status in clarifying what court actors mean and anything left unsaid. I carefully presented the words of court actors as closely as possible in the observation, analysis and reporting stages, avoiding placing words in their mouths or claiming intentions without a foundational basis within the text. Finally, familiarity with prior research and personal background may have influenced the interpretive process. To address biases during this process, I memoed extensively on my interpretations, reflecting on my own personal beliefs about domestic violence, drug use, race, and gender, and met with colleagues to talk through my findings, reading coded sections together to determine whether my interpretations made sense to an outside reader. The next section outlines how discursive repertoires utilized by court actors and probationers in framing a probationer’s actions were dependent on the social background of the probationer and gendered and raced assumptions of the causes of behavior.

Findings

Common discourses that emerged within the probation review hearings included responsibility, mental health, and domestic violence. At times, judges and other court actors discussed these larger discourses in gendered or raced ways, reflecting stereotypical assumptions about women and men, and Black and White probationers. Additionally, racial discourses emerged in how Black and Latinx probationers were talked to by judges and probation agents, both in the “free advice” they gave and comments made in responses to probationers’ statements. Ultimately, women and men probationers, and probationers of color were talked to and talked about differently by judges and probation agents. Which contextual factors were emphasized, underlying assumptions said aloud, and social constructions were accepted by judges depended on the social location of the probationer—namely their gender, racial/ethnic background, and their family status.³ Differences did emerge across gender of judge in two main ways. First, men judges, with the exception of one woman judge, tended to interrupt and yell, challenging probationers’ constructions of their non-compliance more commonly. Second, men judges tended to sanction more readily for minor infractions than women judges. This section outlines first how responsibility, mental health, and domestic violence discourses were gendered, followed by responsibility discourses as raced and underlying racial discourses vis-à-vis character assessments and underlying assumptions.

Gendered Assumptions of Being a Responsible Parent

Two discourses emerged regarding the role of parents during hearings—that of financial providing and caregiving. Most commonly, parenting as providing basic needs was reflected in how judges talked about issues related to employment, drug use, and housing. Concerns with these factors were framed as being an irresponsible parent, placing one’s wants before children’s needs, or failing to provide the basic needs that a responsible parent would. In one hearing, Judge A gave this lesson to a father who tested positive for drugs: “I want you to keep this picture in your head—a quantity of marijuana and something for any one of your seven kids. Every time you pick up the marijuana, that’s one thing your kid doesn’t get.” Although prior literature has suggested that men and women are talked about differently in relation to parenting (e.g., Daly, 1987a, 1987b), reflecting dominant paradigms of women as caregivers and men as providers, discourses of parents as providers were utilized in constructing both men and women. This is particularly true with respect the framing of being a “good” parent vis-à-vis employment status. With women, when unemployment was referenced by judges or probation agents, agents often asserted that these women, as mothers, wanted to find work. This suggests that while caregiving is seen as a primary concern in speaking about parenting for women as mothers, providing for one’s household is also seen an important criterion for being a parent. Further, when women probationers were pregnant and unemployment was discussed, judges often asked if they intended to work after the child was born. Often, defense attorneys asserted a probationer’s employment when a potential sanction was imminent, attempting to frame the incarceration of their clients as a hardship financially for the family, regardless of gender.

Gendered assumptions of being a responsible parent were seen within two main issues—whether the parent had engaged in drug use and if there were physical or mental health concerns. Drug use among fathers emerged as a dominant concern for judges, framed as a threat to being a stable provider. In these hearings, judges drew on responsibility discourses of being a financial and material provider for one’s children—assuming that spending money on drugs meant that one’s children went without a material need such as clothing, shoes, and school supplies, as seen in the earlier example. For women, issues with physical health or mental health emerged as important indicators being a “responsible” parent through diminished capacity as a caregiver. In one exchange, Judge C expresses concern for a woman probationer with physical health problems in caregiving for her infant: “You don’t want to lose consciousness and the baby is alone. I’ll set another review; you need to take better care of yourself.” Similar to the findings of Worrall (1990), physical health concerns were only brought up in relation to mothers’ caregiving abilities, with those who were unable or unwilling to care for their own health framed as irresponsible caregivers to their children.

Women probationers’ gendered expectations as caregivers extended beyond discussion of taking care of physical and mental health. Similar to the prior literature, issues that interfered with providing care for one’s children were seen as distractors for these women (e.g., Daly, 1987a, 1987b). In one hearing, a mother framed her recent unemployment as caused by inflexible scheduling by her work:

Judge B:

Ms. ___, I reviewed your report. Your UA [urinalysis test] was negative, excellent, your employment at Burger Hut time has ended?

Probationer:

Yes.

Judge B:

What happened?

Probationer:

They weren’t complying with daycare schedule, I worked until 12 at night, daycare ends at 12:00 and I’m on the bus.

Judge B:

It’s good you’re taking care of your kids, what are you doing to do?

Probationer:

I’ve been looking.

PO:

She did apply for assistance, and is looking. She wants to work.⁴

In this exchange, the judge validates this decision by stating “it’s good you’re taking care of your kids,” reinforcing the decision to put caregiving as a priority. Yet being a provider through obtaining employment is also a concern for the judge, which is alleviated by both the probationer and her agent asserting that she “wants to work.” Thus, although women probationers with children were expected to obtain work to provide financial stability for their families, judicial concerns about caregiving were considered equally important. Concerns with caregiving for fathers was less prevalent in these courts, with men probationers offering childcare issues as reasons for missing treatment. In one example, a male probationer offered this explanation for missing a BIP session, “My daughter—her mom is sick, I have to be there for her. I have the medical documents.” Although judges accepted these excuses, they did not discuss caregiving ability or priorities with father probationers.⁵

Mental Health Discourses as Gendered

Mental health was commonly brought up in probationers’ cases, irrespective of gender. There were, however, gender differences in the ways mental health was used to frame a probationer’s actions and which illnesses or issues were mentioned. Mental illness was most often discussed in women probationers’ cases, while men tended to have their mental health framed as “anger issues” more commonly than women. Indeed, depression, anxiety, trauma, and co-dependency were more commonly cited by women probationers, their probation agents, and their attorneys when framing failure to comply with conditions of probation. The need for a mental health assessment and treatment was expressed more commonly with women as a “focal point” for getting treatment with other issues, such as substance use dependency and employment. In one exchange, the inability of the woman probationer to get mental health treatment is seen as a primary concern for the judge:

Judge B:

I’m unsure on mental health—it was the focal point. She was to use primary care provided to schedule an appointment but didn’t follow through and the department is upset and frustrated that a critical need is ignored.

Attorney:

She needs her mom to be present, but her living situation is toxic. She doesn’t have other options, her daughter lives with her. I think the level of reflection and input is high. It’s what common people deal with mental health, anxiety and depression, not schizophrenia. Additional issues in a toxic environment, which can exacerbate the helpless feeling preventing making a change. She has an appointment.

In this exchange, the lack of “follow through” by the probationer on getting mental health treatment is reframed as “helplessness” due to living in a “toxic environment” with her mom, compounding her symptoms of anxiety and depression. Thus, like Worrall’s (1990) findings, women were often constructed under “pathology” discourses, of being sick, fragile, and in need of help. For men, by contrast, most of their issues were framed as “anger issues,” with one referencing his “intermittent explosive disorder.” Mental health discourses, in these cases, were used to frame the offense under a larger issue of uncontrolled anger. In one example, a male probationer stated, “I have an anger problem” in response to talking about the offense. The judge responded with, “I am concerned you’re not changing,” and asked him to “get as much out of treatment as you can.” When men probationers and their agents attempted to frame their non-compliance with probation as due mental health concerns typically associated with women (i.e., depression, anxiety, trauma), they were often met with resistance by judges and probation agents.

Gendered Understandings of Domestic Violence

Although this study observed hearings in domestic violence courts, discussion of domestic violence was less common in review hearings than compliance with conditions of probation (e.g., sobriety, treatment attendance). When discussed in hearings, domestic violence discourses reflected two dominant typologies of understanding domestic violence within the literature—“common couple violence” and “power and control over women” (Johnson, 2005; Klein, 2009). The latter discursive repertoire is not surprising, given that previous research has suggested that specialized domestic violence courts receive training on the Duluth model as a central component to domestic violence (Klein, 2009).

Gendered understandings of domestic violence emerged mostly when women probationers mentioned a history of violence within the relationship and when men probationers challenged these dominant discourses, framing themselves as the “true victims.” In one hearing, the probation agent begins by framing the violation of a no contact order as part of an abusive tactic of the male victim in the case:

PO:

The victim is coming to her work, there’s no contact order, and made some threats to harm her, her children, and her mother.

Judge B:

(reads report), what is it about?

Probationer:

He wants to see the kids, I block him, he calls on a different number.

Judge B:

What does he say?

Probationer:

He will beat me, kill me, make my life a living hell.

Judge B:

You can get a restraining order.

Probationer:

I have one, I have to come back on Monday.

Judge B:

Report it.

Often in these courts, the woman probationer or her agent would inform the court about ongoing issues with threats and stalking, expressing fear for their and their children’s lives. Judges would ask them to report it to authorities as in this example, accepting this view of women probationers as “true victims,” thus reflecting the dominant discourse of domestic violence in American society (e.g., Klein, 2009; Kruttschnitt & Carbone-Lopez, 2006; Mirchandani, 2006; Schwartz & Dekeseredy, 2008). In such cases, male victims are constructed as controlling, harassing partners perpetrating emotional abuse through intimidation and threats of harm. By contrast, when men probationers asserted that the victim had initiated contact, was violent, or had filed a false report, most were met with reprimands reminding them that “it’s on you”—further suggesting that domestic violence is largely viewed as violence against women. In most cases, judges changed topics after these challenges. This use of institutional role, in the ability to speak, question, and change the line of discussion effectively silences the probationer from further defining themselves with an alternate discourse.

Similarly, men’s aggressive and violent behavior was framed as general hostility toward women; words never used to describe women probationers and their non-compliance. Indeed, men who were constructed as hostile toward their female agents, female programming staff, and women in their lives were framed having “control issues” and were told they needed to change their thinking. In one such exchange, the judge infers from the report that the probationer is hostile toward all women, based upon the report constructing him as “argumentative” to his agent:

Judge E:

<Reading the report> On 1/15, client scheduled, called to be late, failed to report one hour later. After tampered UA, client failed to report for new UA. Client argumentative. Agent admitted that Living Free dropped the ball. Despite this, you are still responsible. It’s his responsibility. What are you on probation for?

Attorney:

Battery.

Judge E:

Of whom?

Probationer:

A woman.

Judge E:

I think I know what the problem is here . . . That’s on him. He’s got to adjust his beliefs on the world.

The use of “hostility toward women” as a discursive repertoire, reflecting domestic violence as power and control, tended to be used in similar cases involving male probationers who were constructed to be hostile toward women treatment and correctional staff. Thus, discourses of domestic violence were at times gendered, reflecting underlying assumptions of violence and in particular violence in the home as perpetuations of male aggression (Dasgupta, 2002; Gilbert, 2002). By contrast, other cases were framed as common couple arguments, often exacerbated by alcohol or drugs. In these hearings, gendered assumptions of violence were not discussed; rather, extenuating circumstances were used to frame underlying issues of non-compliance as well as the original offense.

Responsibility and Mental Health as Raced

Although gender differences emerged in how responsibility, mental health, and domestic violence discourses were used to frame non-compliance, racial differences emerged in which discourse was used to construct a non-compliant act. One of the main differences between probationers of color and White probationers is how their non-compliance was framed under responsibility or mental health discourses. One area in which there was stark contrast across race was drug use while on probation. Black probationers’ drug use was mostly framed as a personal choice and moral failing, discursive repertoires that represent responsibility discourses, often leading to a short jail sanction. In one hearing, Judge A describes continued positive tests for marijuana by a Black probationer as “It’s your third test positive—I can’t ignore it . . . not the worst . . .. The problem is worse here than if you were an addict and you were fighting addiction. But you say you can stop and before you stopped,” denoting drug use as a choice. White probationers, by contrast, mainly had their drug use framed as addiction—a problem that “needed help,” thus mitigating their responsibility. In one hearing, a White probationer who admitted to continued alcohol use had his non-compliance framed as a mental health issue:

Attorney:

Judge D required a mental health assessment—he never had one. I’m concerned it may be mental health, self-medication.

Judge E:

20 days stayed conditioned on day treatment—cost be damned, get into inpatient. If Day Center doesn’t work there’s 2 options: he needs inpatient treatment, or revoke and send him to prison. Seems the first option makes more sense, the second doesn’t. If you show up drunk and I suppose they’ll put you in jail.

Throughout this hearing, the judge is critical of the probationer’s alcohol use and doubts whether inpatient treatment will work; however, he ultimately frames it as addiction in need of treatment. Inscribing drug use as addiction relies on mental health discourses, which judges often paired with the suggestion of getting treatment rather than spending time in jail. This racial difference in discourses applied to drug use commonly held across type of drug, yet was most starkly noted when referencing opiates, and less commonly found when referencing marijuana or cocaine and marijuana use.

Judges also more commonly mentioned the connection between employment and drug use for probationers of color, often asking how they could afford drugs if they were unemployed or considered to be underemployed. An example of such question can be seen with the earlier hearing described with Judge A, “I gotta ask—where do you get the money for the marijuana?” when hearing that the Black probationer is on an apprenticeship. These questions implied that one is unable to pay for drugs, and therefore viewed as a potential drug dealer, further re-inscribing men of color as the “criminalblackman” (Alexander, 2010; Heitzeg, 2015; Russell, 1998).

In addition, probationers of color who used opiates and prescription pills tended to have their drug use framed as problematic compared to Whites. Often when asked about why they tested positive for opiates, probationers would cite health issues—back problems, toothaches, even being a gunshot victim. The difference, however, lies in how probationers’ reasons for opiate use were framed by judges and probation agents. Opiate use was most often framed as addiction for White probationers regardless of their reasons for starting to use prescription drugs. For probationers of color, however, discussion of opiate use centered on the reasons for use, with judges dismissing their reasons as having a “story for everything.” In one example, a Black probationer who tested positive for opiates told his agent that he had pain from a previous gunshot wound. Judge B addresses the probationer with, “It’s not something you should be taking. I sort of believe you—normally people say they’re taking a family member’s prescription for back pain or a bad tooth, I hear that all day every day.” In this example, the probationer was successful in constructing his drug use as due to health issues; something that in most other instances observed was met with denial by judges. Framing of someone’s drug use as addiction or personal choice, as a “legitimate” or “dishonest” reason often influenced whether the probationer would be sanctioned or referred for AODA treatment.

Further, racial differences emerged with respect to progress on probation in general.

Often personal responsibility discourses were referenced when framing probationers of color as irresponsible or lacking initiative. Delays with starting programming, missed or tardiness at sessions, and unemployment were most often met with rhetorical questions about why they were not “doing enough” or were “doing nothing.” Responses given by probationers of color were often met with admonishments that suggested laziness, lack of independence, and a failure to take personal ownership over one’s actions. In one hearing, the Black male probationer’s unemployment, continued marijuana and prescription pill use, two misses at BIP, and previous termination from another BIP program for non-attendance were framed by the probationer as lacking assistance, while the judge reframed non-compliance as irresponsibility:

Judge A:

He has no financial money, at this point I don’t know he’s taking this seriously.

Probationer:

I’m trying.

Judge A:

Because you have a hearing today? Or because you are taking it seriously? I am disappointed, you’re not doing well on any score.

Probationer:

I’m trying, I’m trying. I’m not able to see my son for his first birthday. It’s overwhelming.

Judge A:

How did that happen?

Probationer: I don’t know.

Judge A:

It’s you. You have to get out there and find a job, try day after day.

Probationer:

It’s hard to start over. I have no income, no transportation, people won’t help me.

Judge A:

It’s on you!

Within this exchange, the probationer’s mention of struggling with limited finances, transportation for finding a job, and social support from others is met with a challenge that reiterates a judgment of making poor personal choices, and thus being irresponsible in not finding work. This emphasis on responsibility in evaluating probationers of color mirrors the use of “mopes” as a trope within Cook County courts, as found by Van Cleve (2016).

White probationers who “did nothing,” by contrast, were constructed as being an anomaly, requiring a mental health evaluation. Indeed, one White male probationer had not looked for employment, seen his agent for months, started AODA treatment, and continued to test positive for alcohol. The judge’s response differs from what was typical for probationers of color with similar non-compliance issues:

PO:

After absence, a family friend offered to help, but he has no motivation.

Judge B:

<to probationer> Put those things down. Why don’t you have motivation? (Back and forth about “What do you do all day?” “I’m at home”)

Judge B:

Laying around and watching TV?

Probationer:

Yes.

Judge B:

Has he had a mental health evaluation?

PO:

He already met . . . at this point I don’t know what to do with him anymore.

Judge B:

I ordered a mental health evaluation . . . he was supposed to have a mental health evaluation—did they recommend anything?

PO:

No.

Judge B:

Is there no recommendation for this lethargy? I haven’t seen anything like it—isn’t it boring?

The connection between “motivation” to do anything with mental health is striking—rather than framed as a personal choice or act of laziness, his actions are described as something that is beyond his control—such as suffering from depression. Further, White probationers who were not on public assistance, while reminded that they could apply for help, were also congratulated for being resistant to asking for help. These individuals had the same cluster of issues—unemployment, lack of insurance or identification cards, missed treatment sessions, and drug use—yet their lack of progress was often framed in a different light, utilizing discourses of responsibility via being independent or mental health.

Character Assessments of Probationers as Raced

Racial discourses also emerged through judges’ interruptions, side commentary, and lengthy speeches. These interjections are subtle, and while part of the record in court transcripts, do not typically pertain to evaluating a missed appointment or a lack of employment. Within these statements, assumptions of what is “typical” or “expected” behavior are expressed. At times one judge in particular used humor and rhetorical questions to mock probationers of color who utilized slang and incorrect grammar when giving responses. In one hearing, after Judge A asked where supervised visits with children were, he mocked the Black male probationer’s response by repeating it, stretched out for emphasis, and laughed: “baby mama’s mom.”

More frequently, judges would express raced assumptions of men of color that reflected stereotypes of Black and Latinx men as hyper-sexed with multiple children, or as hyper-aggressive. Although judges often asked probationers about their children, including the number and ages, Black and Latinx men tended to have value-judgments associated with the responses provided. In one hearing of a Latinx probationer, the judge interjects between a series of questions about continued drug use and current employment status with:

Judge A:

How many kids do you have?

Probationer:

Seven.

Judge A:

Seven kids—how many different women?

Probationer:

Three.

Judge A:

Three?! The report says seven children with four different women. You have not paid child support.

Although there is a connection to lack of paying child support at the end of the line of questioning, the question of the number of women and shocked “Three?!” reflect the cultural stereotype of men of color as having multiple children from varied partners. These same value judgments were not given to women of color, nor White probationers.

At times the assumption of Black men as aggressive was reflected in “reading” the behavior of these probationers as hostile toward agents or other authority figures. In one exchange, the judge interjected at the end of the hearing with a “free piece of advice” on how to approach an employer:

Judge C:

I noticed, I don’t know if it was the way it was written, when you requested a raise at your job, however your hours were reduced because you seek alternate employment. It could be how it was said, be careful on how you do that. (Said that if you go in and demand a raise or you will find a different job is not helpful)

Probationer:

Actually, I applied for a higher paying job, and she reduced my hours. (Stated she had found out with a reference check)

In this exchange, the memo on the Black male probationer’s progress included a note on his employment status that the judge drew on in framing her construction of his actions as hostile and aggressive when meeting with his employer to demand a raise. As can be seen, however, this assumption, which drew on cultural scripts of Black men as threatening and aggressive in interpersonal relations, was unfounded. White men probationers only had inscriptions of their behavior as aggressive when framed within hostility toward women in their lives—whether probation agents, agency staff, or intimate partners.

Judges also utilized diatribes to express their character assessments of probationers, drawing on cultural scripts of men of color as aggressive and irresponsible (Brezina & Winder, 2003; Cesario et al., 2010; Todd et al., 2016). These character assessments often began with the preface “I get the sense” and followed with an assessment of a probationer as lazy, irresponsible, or manipulative. During one hearing, Judge A engaged in an exchange with a probationer about why the probationer needed to have two cell phones. After the probationer stated he a “government phone” that he believed President Obama paid for, the judge responded:

Judge A:

This may not be fair . . . I watched you come in this morning, I read people. You came across real slick, quick with answers, you don’t want to change. Within 15 years of sitting on the bench with domestic violence, I’ve never seen someone refer to the victim as your better half and when a question about how the victim would feel about the offense you replied “she understands.”

Probationer:

When did I say that?

Judge A:

To your agent (reads question and his response).

Probationer:

I never said that.

Judge A:

That’s my point, you’re slick with responses. You’re spending the weekend in jail. Two days, get serious, Mr. ___.

Within this exchange, clear reference is made to the extra-legal judgments rendered by the judge in “read[ing] people” and making assumptions based on minimal observations prior to a court hearing of the “true character” of a probationer. These assessments, although not specifically referencing racial factors, were provided almost solely to probationers of color.

Discussion

This article sought to examine whether there were racial or gender differences in the discourses used to frame probationers’ actions, as well as how racial and gender discourses were employed by court actors during probation review hearings. The main discourses that were prevalent in probation review hearings were responsibility, mental health, and domestic violence. Gender and racial differences emerged in how non-compliance was framed based on these underlying discourses. Further, racial discourses emerged in the side-commentary that judges would use during hearings, such as offering unsolicited advice, making jokes, or voicing assumptions based on character.

Gender differences were found in three forms—framing non-compliance issues as responsibility discourses for parents, mental health discourses, and domestic violence discourses. Non-compliance with treatment, employment, and drug use were framed using responsibility discourses for probationers who were parents, yet gendered assumptions of caregiving also were present. When issues arose with employment or drug use, both men and women probationers were chastised for not being a provider for their children. Women more commonly were constructed via their caregiving responsibilities in conjunction with providing responsibilities. These two discursive repertoires of provider and caregiver reflect what Daly (1987a, 1987b) found in her interviews with judges, probation officers, and attorneys. Second, mental health and physical health concerns were more commonly cited for women probationers as mitigating factors for non-compliance as well as eliciting concern about caregiving ability when these health concerns were neglected by mothers. This is consistent with the prior findings of Worrall (1990) as well as the tenants of the focal concerns perspective (Steffensmeier et al., 1993, 1998).

Finally, domestic violence was often viewed as violence as violence against women (Johnson, 2005; Schwartz & Dekeseredy, 2008). Women probationers commonly framed themselves and were framed by others as “true victims” who were continually threatened and harassed by their male partners. By contrast, when men probationers tried to frame themselves as “true victims,” judges often silenced or challenged these constructions, reaffirming that domestic violence reflects power and control issues of men over women. Although domestic violence as violence against women was often the discourse utilized in these types of situations, judges more commonly relied on a discourse of domestic violence as stemming from conflict of everyday frustrations. This can be seen in judges citing jealousy, financial stress, and the problem of substance use exacerbating conflict into violent outbursts, consistent with Johnson’s “common couple violence” (Johnson, 2005).

Racial differences emerged in two main forms—framing non-compliance issues and in how judges talked to probationers of color. Responsibility discourse were more commonly used when constructing probationers of color’s drug use as a personal choice and moral failing, while mental health discourses were used to construct White probationers’ drug use as addiction. Similarly, when Black probationers had extensive issues with non-compliance, their actions were constructed via responsibility discourses as lazy, irresponsible, and wasting time, while White probationers with a similar constellation of issues were framed under mental health discourses, such as suffering from severe depression. These findings are consistent with those of Lara-Millan and Van Cleve (2017), who found that felony defendants in Cook County were evaluated differently based on neoliberal logics of the “deserving” and “undeserving” poor (see also Gough et al., 2006; Van Cleve, 2016). This dichotomy between “deserving” and “undeserving” of leniency reflected divergent approaches to viewing probationers via neoliberal and penal welfare lenses (see Daly & Bouhours, 2008; Travers, 2007).

Further, judges were found to “read” a probationer of color’s character as manipulative, hostile, or hyper-sexual, re-inscribing racial stereotypes. Alexander (2010) argued that racism has evolved to deep grammar connections under the coded language of “criminal” and “predator,” which perpetuate disparity (see also Crenshaw, 1991). Indeed, much of the prior literature has found that Black males in particular are viewed under dominant stereotypes of hyper-aggression, hyper-sexuality, and dangerousness (Ferber, 2007; Morales, 2014; Russell, 1998; Steffensmeier et al., 1998; Travers, 2007; Van Cleve, 2016; Wacquant, 2010). It appears that racial discourses and racialized discourses of “deserving” and “undeserving” operate in both traditional courts and in the domestic violence courts observed here. Most notably, probationers of color who were constructed via responsibility discourses of “undeserving” vis-à-vis laziness and irresponsibility often had real consequences from such framing. These individuals often were sanctioned for their non-compliance, particularly when drug use was the main issue.

The dominant discourses used to socially construct a probationer’s actions reflected underlying power dynamics in which probationers’ accounts were often silenced or discredited through institutional roles and talk. Although this finding is consistent with some of the prior literature (e.g., Frohmann, 1997; Worrall, 1990), there were instances when probationers were able to influence the construction of their actions. In Worrall’s (1990) study, women were largely powerless in the institutional process, yet they resisted discourses of sexuality and pathology, preferring to construct their identities based upon domesticity discourses, such as framing themselves as good mothers. Similarly, men probationers in this study resisted dominant domestic violence discourses, attempting to label themselves as “true victims,” while Black probationers at times resisted responsibility discourses for drug use and general non-compliance, attempting to reframe their issues mental health and needing additional assistance. Defendants in Gathings and Parrotta’s (2013) study actively participated in constructing themselves as “good” parents and men as “good providers” with the assistance of their attorneys. Therefore, when given the space to speak within the institutional roles and rituals, defendants often do assist in framing themselves and their actions in a mitigating light.

Limitations

This study is not without limitations. Three domestic violence courts were examined in an urban, Midwestern county. The socio-cultural forces in this county may be different from other counties, perhaps leading to different prioritization of non-compliance issues and potentially different discourses used to make sense of non-compliance. Future research should examine other domestic violence courts in different regions or levels of urbanization to determine whether the discourses utilized here extend to other locales. Additional research is also needed in other types of problem-solving courts, as there were some differences in factors considered in these courts compared to mental health courts (Ray & Dollar, 2013). Further, judges receive a probation report prior to the scheduled hearings and peruse these before court. It is conceivable that information may be contained in the memo that is not referenced in court; therefore, there may be factors judges consider that are left unsaid. It would be beneficial for future research to include both participant observations of hearings and court records or reports for a broader picture of judicial decision-making in problem-solving courts. Future research also should integrate mixed methods approaches to more fully understand both the processes and outcomes of court decision-making.

Policy Implications

This study found that gender and racial differences emerged in how probationers were talked about and talked to Ulmer (1997) stated, “[w]hat people define as real becomes real in its consequences” (p. 187). As found here, differences in discursive practices when speaking to probationers often led to disparate treatment in sanctioning decisions, although not tested quantitatively in this study. Judges may be unaware of the differences in how they talk to probationers of different backgrounds, yet this unconscious bias can have lasting effects for the reproduction of inequality within the criminal justice system (see Rachlinski et al., 2009; Van Cleve, 2016). Therefore, judges may benefit from implicit bias training and regular practice of self-awareness of biases associated with domestic violence, substance use, gender, and race/ethnicity. Bias training has become popular in training practices among police departments and within the human resources sector to promote a more diverse workforce (Jackson et al., 2014; Smith, 2015). Acknowledging implicit biases and stereotypes is the first, necessary step toward more equitable treatment of offenders. Additional data collection and monitoring of court outcomes could also serve as a metric for tracking progress in reducing disparities.

Supplemental Material

Supplemental_Material – Supplemental material for Observing Gender and Race Discourses in Probation Review Hearings

Supplemental material, Supplemental_Material for Observing Gender and Race Discourses in Probation Review Hearings by Danielle M. Romain Dagenhardt in Feminist Criminology

Footnotes

Declaration of Conflicting Interests

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

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Danielle M. Romain Dagenhardt

Supplemental Material

Supplemental material for this article is available online.

Notes

Author Biography

Danielle M. Romain Dagenhardt is an assistant professor in the Department of Criminal Justice and Criminology at the University of Wisconsin—Milwaukee. Her research interests include court processing and gender and racial disparities in court decision-making. Her work has been published in journals including Feminist Criminology, Crime & Delinquency, and Journal of Criminal Justice Education.

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