Racial disparity in criminal sentencing guidelines and outcomes

¶ … race plays a role in the different sentencing ranges applicable to different crimes.

Race and Sentencing Guidelines

Race has been a consideration in sentencing guidelines for quite some time. Many individuals believe that those who are not Caucasian receive sentences that are harsher and punishment that is stricter than others

Because of this, there is concern that perhaps the sentencing guidelines and the entire criminal justice system is racially biased. This is evidenced not only by individuals of other races who feel that they have been treated unfairly but by statistics which indicate the number of non-Caucasian individuals on death row and within the prison system in general.

The purpose of this paper will be to show that there is disparity between the sentencing guidelines that are given to Caucasians and to non-Caucasians and to look at the extent race plays a part in the prosecution for different crimes. This is not only the case for small crimes or large crimes, but for all crimes across the spectrum. In an effort to be fair, opposing views will be discussed and the problems and proposed solutions will be discussed as well. By discussing all of these issues it can be seen that individuals who are of minority races often meet with harsher punishments than others who come into the criminal justice system.

There are many reasons that this happens, and one of those could potentially be the fact that many of these minority individuals do not have the finances to hire good lawyers

. Many of these individuals end up with public defenders and while public defenders do the best for their clients they are often overworked and underpaid. Because of this, individuals that require public defenders often do not get as good of a chance at being paroled or having a lighter sentence than those that can afford high-priced attorneys. There are many more minorities in the prison system and on death row than there are Caucasian individuals, and there are more men than women. For the purposes of this paper the gender differences will not be an issue. Whether they are male or female will be irrelevant; the only concern will be with what race they belong to. According to the Supreme Court, there should be equal treatment for all individuals who are found to the guilty of an infraction of the law

. This should be true regardless of the race of the individuals but sadly there seems to be loopholes in the criminal justice system which cause many of these individuals to fall into difficulty with the law and then to have trouble getting out of this cycle of scrutiny and arrest

There are Caucasian individuals in this country that would argue that minority races have more crime and that they are not as good of individuals as those of Caucasian ancestry. However, this does not necessarily mean that this observation is accurate. One must consider the possibility that those that are of minority race in this country are not committing crimes at a higher rate, but that they are being targeted at a higher rate and therefore the crimes that they do commit are being discovered more than the crimes that are committed by Caucasian individuals

. Many of these crimes relate to drugs and so the main focus of this paper will be on the issue of drug crimes. However, other crimes will be considered in order to show that this is something that travels across the entire criminal spectrum and is not limited to one area of crime. This is important to understand because it indicates the racial biases that individuals in this country hold are not related to the particular type of crime and are tied only to the race of the individual in question.

It is not so much the particular police officers that cause any type of issue but it is the criminal justice system itself. The court system and the lawyers that these individuals get are often biased, or at least seemingly so, against individuals of minority races and therefore much of what they attempt to do to help Caucasian individuals they will not do to help minority individuals

. They must operate within the confines of the law, but there are many loopholes and much room for discretion on the part of many judges. A judge who wishes to make an example out of an individual who has committed a particular crime can easily pick someone who is of minority race and get away with this idea because the judge has indicated that this person is being used as an example. In this way, this person can be punished more harshly than would normally happen but the judge will not have any concerns over being questioned about his bias on that individual's race.

It is also true that most individuals who operate the court systems are Caucasian males and therefore it is quite likely that there is much bias against those of other races. While it is difficult to prove much of this there is enough evidence given in studies and various articles that will be discussed in this document to lend some credibility to this opinion. Because individuals of minority races are troubled by criminal activity and harsher sentences more often than those of Caucasian origin, these individuals often argue that authorities are targeting them and that Caucasian individuals committing the same crime would go free or receive a lighter sentence

. As has been mentioned, this is very difficult to prove because judges and lawyers as well as police officers who obviously and blatantly allow this kind of thing to happen would receive difficulty from many others who would believe that this is not the proper way to do things. However, because there are so many various ways where individuals can to get by with punishing someone differently than they have punished someone else there is no real way to say that these individuals are doing anything wrong and prove it with any type of means that would require them to stop and rethink what they are doing.

For example, if sentencing guidelines for a particular crime are between 5 and 10 years there is no reason why a judge cannot give a white man five years and a black man nine years. Even for people that might say that this was unduly biased or racist in some way toward the minority individual, there is no way for the judge to end up in any kind of trouble for doing this because he followed the sentencing guidelines that were available and stayed within the limits offered to him to sentence each individual. There are many ways that work to make it sound as though one person did something worse than another, and this can greatly affect their sentencing. This can have to do with the type of weapon that an individual may have had, the intent that the individual is believed to have had at the time, and whether he had a prior record of any type of arrests

Because there is an opinion in this country that black and other minority individuals are targeted more often the white individuals, it is quite possible that minority individuals will have an arrest record. This is not due to the fact that he has committed more crimes than a Caucasian individual, but has to do with the fact that authority figures appear to be more willing to arrest and prosecute someone who is of minority descent

. It is clear that something needs to be done about this issue because many individuals who are being punished unfairly are being required to suffer with the consequences of a corrupt criminal justice system

. This does not mean to imply that individuals in the system are all this way or that there are no minority individuals in the higher levels of the criminal justice system. However, there are a majority of Caucasian individuals in this system and many of them appear to have biases in the way that they sentence individuals who are not of their race.

Is It Discrimination?

It is difficult to say exactly what should be done about this, however, because it is a problem that is far-reaching and has such a wide range that it would be very difficult to correct it in all areas of the country and with all judges that may feel this way. Naturally, it is wrong for these individuals to treat someone of one race differently than they treat someone of another race. Constitutional measures and all other information that these judges are to go by specifically prohibits them from treating someone different based on their race

. This is discrimination of a very strong form and it is something that people insist that they do not tolerate in this country.

However, despite the insistence that this is not tolerated it goes on every day in this country when individuals argue that blacks are treated less fairly in the criminal justice system that Caucasian individuals. The same is true for Hispanics and other individuals who are of different cultures and races. Supreme Court decisions often travel around in circular patterns and make the actual understanding of the ruling very unclear

. There is much confusion when trying to read these types of document and the court often goes on for many pages before they actually get to the point of the matter. By the time they have talked on so many issues it is quite possible that race has come into the picture and has gone unnoticed or has been categorized under some other term that would not cause offense

. It is difficult to read these Supreme Court opinions and understand what they have to say without becoming lost by all of the legalese that is used in these documents.

Courts, Judges, and the Real World

They often speak of a world that does not seem overly realistic when compared with the world that we actually live in . They talk of justice and they talk of everyone being equal but they do not treat these individuals in such a way as to indicate that they actually believe that. When they deal with race they discuss it in such a way that they appear to say that it is neutral. In other words, they state that police officers do not profile individuals based on race, that those who conduct searches and seizures would not be that likely to search an individual who is of a minority race, and that everyone has an understanding of when they can refuse a police search and when they cannot

In reality, the world is very different from this and most people are not aware of being able to refuse this type of search. Most people who come upon a police officer requesting a search of their person or property will comply because they feel that they will get into much more trouble if they do not agree

. They may believe, like most individuals in this country seem to, that refusing a search admits some form of guilt. This is not necessarily the case, as many individuals who have done nothing wrong take offense to having their privacy intruded upon and will not want an officer searching their person or their property for any reason. However, when individuals resist this type of search officers tend to believe that they have guilt and that they are hiding something. When these people are of minority race officers tend to be more believing of the idea that these individuals are hiding something and this is why they do not wish to consent to a search

. This is often not the case, but because of racial profiling and the attitudes that many individuals have about others of minority race in this country it often becomes a problem for many.

The Burden of Proof and Suspicion

Drugs Laws and Minorities

Another study, this one conducted by The Sentencing Project, deals with the amount of supervision that many of these African-American individuals have to deal with . Men who are African-American in race and between the ages of 20 and 29 are under the supervision of one part or another of the criminal justice system at a rate of over 32% on any specific day

. The war on drugs that has become so popular is important, but many of the lower-level dealers that live in inner city neighborhoods are being targeted in this war, and this makes up a lot of the racial disparity that is seen in prisons. There is a 100 to 1 sentencing disparity in federal prisons between crack and powder cocaine, and this is coupled with a serious focus on crack offense by federal law enforcement individuals

. This also works to play very significant role in much of what creates the disparity.

Drug offenses have a higher rate of incarceration, but available data would suggest that there is no more drug use among African-American individuals that there are among Caucasian individuals. In 2001, the national household survey on drug abuse found a 7.4% illicit drug use rate among African-Americans, a 7.2% illicit drug use rate among Caucasians, and a 6.4% illicit drug use rate among Hispanics

. Even with these statistics being so close to each other in nature, African-American individuals represent almost 60% of the individuals that are incarcerated in state prisons based on drug offenses

. Unfortunately, this is not limited to only African-American men. African-American women have been incarcerated in numbers that have risen very rapidly, and much of this has also been based on policies related to drug enforcement

. The number of women in prison is growing at a huge rate, and much faster than the rate of men that are being incarcerated. Much of this deals with African-American women and drug crimes.

Because of federal mandatory sentencing laws and drug enforcement policies, African-American women charged with drug crimes are dealt with very harshly. This is partially because many of the women that have been convicted on drug offenses have played very minor roles in drug transactions. It has generally been their partner who was one of the major individuals in these transactions

. Because of mandatory sentencing, however, any other leniency that these women might have been afforded due to these reasons has been eliminated. What is also ironic is that many of these women are unable to provide information that might help to reduce their sentence

. This is largely due to the fact that they are offered deals if they will give information on others in the same drug circles, but because they are such minor players and know so little there is no information that they can provide that authorities will find useful. Because of this, they are often deemed uncooperative and they are sentenced at a harsher level than they would have been had they been able to provide information that the individuals wanted. As a result of this, they often end up with sentences that are a lot harsher and longer than the males who were involved in the same crime

It is also true that many of the courts do not recognize the problems that domestic violence plays in many of these cases. Many of the African-American women arrested for drug crimes are sentenced unfairly and treated harshly, but they often are engaged in these types of crimes due to men in their lives and the fear of violence if they do not comply with what is requested of them

. Unfortunately, the duress doctrine is not able to be applied when one considers women who have been battered and coerced into committing drug offenses. Because of this, courts that determine sentencing for these women have not been interested in allowing this type of defense to get a lighter sentence

. Much of the problem with this comes with defense lawyers.

They may be unaware of the fact that these women have been battered and beaten into doing what their men have requested, and they may also be unsympathetic to many of the plights that these women have had to deal with. Because of this, they do not use this information in order to attempt to receive a lighter sentence for their clients

. It would appear that many of them do not believe that their client needs a lighter sentence because of this, and that being coerced or battered into something is no excuse for any of these women to commit crimes that they have committed. Prosecutors, when they are disclosing evidence to the defense, often do not see battering or other violent behavior as important enough to mention. Because of this, the lawyers who would be sympathetic to this type of issue are often never made aware of it and therefore cannot use it to their clients' advantage

It is also true that many African-American women are perceived to be very strong-willed and therefore are not seen as helpless battered women who would need the protection of the courts to stop the men in their lives from harming them and forcing them into illegal activities

. This is, however, a stereotype and not entirely accurate, as many women are battered in this county every year and there is no accurate reason to believe that African-American women can fend for themselves any better than Caucasian or Hispanic women. Much of the current incarceration of these individuals has to do with the enforcement procedures that officers utilize. African-Americans are far more likely to be stopped for a traffic infraction, and once they have been stopped officers quite often take more time to examine them and search their property and person than they would with a Caucasian individual

. One study done in 2001 in San Diego showed that a driver who was African-American had a chance of being stopped that was 60% greater than Caucasians

. Drivers who were Hispanic had a 37% higher chance. Once these individuals were stopped, African-Americans were far more likely to have to submit to search of their vehicle than Caucasians

This does not mean that these individuals commit more crimes, but it does allow officers and law-enforcement greater opportunity to discover crimes that these individuals may have committed. This is one of the reasons believed to be behind the very significantly disproportionate rate of African-Americans and Hispanics that are arrested and charged with various criminal activities. There are some, however, that argue that racial profiling is a good idea. These individuals believe that since a larger percentage of African-Americans commit crimes, it makes more sense to be more suspicious of these individuals

. This argument, while seemingly compelling on the surface, is rather inaccurate. Studies have indicated that officers who stop individuals based on race actually have less success in uncovering crimes and other problems

. If they do not look at individuals in a racially biased way then the searches are usually much more productive and they tend to find more issues and problems than they would if they based their stops on race alone.

Another issue that deals with drug offenses and racial profiling pertains to search warrants. In San Diego, a study of search warrants dealing with narcotics was conducted and there was a definite racial disparity in the way that these were issued

. Only 6% of the population of San Diego County is African-American, but 20% of the search warrants issued in that county in that year were for African-Americans

. Twenty-four percent of the population were Hispanic, but made up 43% of the search warrants

. The 61% of Caucasian individuals living in the county were subjected to any type of search in only 35% of the cases

. Many of the warrants that were issued were in neighborhoods that were considered nonwhite and were mostly in the inner city. Even in areas that were mostly populated with white individuals, however, racial disparity still existed in the percentage of search warrants that were utilized based on the percentage of the population that was a particular race

There were also different tactics taken to get search warrants and carry them out. Eighty percent of the search warrants that were issued in Hispanic and African-American neighborhoods relied on confidential informants

. In the neighborhoods that were mostly white, these were not often used. Many of these confidential informants utilized in the inner city, nonwhite neighborhoods were individuals who had been caught by the law for some particular drug crime or another and had chosen to turn against those who provided them with the drugs in order to actually receive a lighter sentence and better treatment

. Some studies have shown that individuals who use drugs are much more likely to purchase those drugs from an individual that is of their same race

. If this is accurate, it would logically follow that the racial disparity involved in the search warrants would be increased as well as the pattern of searches conducted on traffic stops.

Even with low success rates, large disparities based on race in the issuance of search warrants would also result in these same disparities in the arrests and incarceration of these individuals. Also found in the study was that search warrants that were issued for Hispanic and African-American individuals were much less successful at actually locating drugs on the premises that were search warrants for white individuals

. Search warrants that were issued in drug-related cases for white individuals were successful 53% of the time

. The number was 36% for those of Hispanic descent, and only 28% for the search warrants that specifically targeted African-Americans

. Even when controls were built into the study for the different types of drugs, the racial differences remained prevalent

. This would indicate that while white individuals are found to have drugs on their person in more cases where a search warrant is issued, more search warrants are still issued for African-American and Hispanic individuals. This would strongly indicate a prevalence of racial profiling and a continued harassment of individuals who were not Caucasian.

Minorities, the Death Penalty, and the Community

Interestingly enough, of those leading the death penalty in federal cases, only 43% are African-American, and 55% are Caucasian

. This contrasts very sharply to the death penalty data of many states. Even when further data had been collected based on the cases in which the defendant had been eligible for the death penalty but it had not been imposed, the racial disparities that were found in the federal system still remained. A survey conducted in 2001 works to include an additional 291 cases, bringing the total cases study to 973

. Of these 973 defendants, only 17% of them were white, 42% African-American, and 36% Hispanic

. This contrasts with available information that others would use to assume that more individuals of African-American descent would have been sentenced to the death penalty. These individuals in this survey had been either charged with an offense that made them eligible for the death penalty, or had exhibited some conduct that could have been used to charge them with a crime that would have made them eligible for the death penalty

Unfortunately, many of the negative effects that this racial disparity has is not only limited to the individuals that are searched, arrested, and incarcerated. The impact spreads out to the entire community at large. It becomes necessary to re-examine many of the current drug enforcement policies and law-enforcement policies today because the community effects are so great and are actually unfair to many individuals who have done nothing wrong. Consider the issues that come about what a family member is arrested for some offense. That person's income is lost to the rest of the family, and additional expense is acquired because many of these individuals work to maintain contact with this incarcerated member. When individuals are incarcerated and they have families and children, the burden falls to the parent who retains his or her freedom to make up for the lack of income and to provide what is needed for the children of the union.

This makes it very difficult not only on the incarcerated individual but on all of those who have relied on that person's support for love in their life, because they must now fend for themselves and do not any longer enjoy the closeness that they had with this particular individual and many of the material needs that this person may have met in their lives. Many of the neighborhoods that these individuals come from already have a great deal of troubles and they are poorly organized and often dangerous. Long-term incarceration costs are added to this and individuals who cannot afford these types of issues in their families sink into greater despair and have even more difficulty surviving than they previously did. This can lead some of these individuals to commit crimes as well so that they can have money to feed their children or so that they can end up in jail where they will have meals every day and a warm bed to sleep in. It is not unheard of for individuals to commit petty crimes simply so that they can be arrested and have a place to sleep

When something like this occurs, children are sent to live with relatives who are also poor and disadvantaged, or are sent to orphanages or foster homes where they languish for many years and often times never get adopted. Many of these children go on to lead lives of crime as well because they do not know anything different from what they have grown up with. A study performed recently in New York deals with policing procedures and shows much of the nature of these specific harms that individuals can come to . Those that authored the study discovered much of the incarceration that came about for individuals in New York was largely concentrated in minority neighborhoods that were the poorest in the city

. This started a cycle which made the community disorganization worse and actually increased the incarceration rates in an area where this was already problematic

Most businesses do not want to hire those who have been in prison, and individuals who are not willing to disclose this information are often fired when it is discovered. This stops many of these individuals from having legitimate employment, and adds to their money problems and other issues that can continue to lead them in a cycle of incarceration. The entire neighborhood is also affected by this because individuals who cannot get a job because they are ex-inmates are often seen to live in a particular area of town. The problem with this becomes such that individuals who are law-abiding and live in this area of town are often not hired because employers held a prejudice about individuals who live in this area and believe that all individuals who come from this part of town will be problematic or have been incarcerated at some point

. It puts a stigma on individuals from this area and not only keeps them from getting jobs in other areas but will also keep businesses from moving into that area due to the fear of crime and lack of quality employees to work in their stores

Because many adults in these areas cannot get jobs and there is not much money to go around the social structure that these individuals would normally enjoy weakens and adolescents and children turn to criminal behavior or other problematic issues. Mothers are then left attempting to do everything and they often do not have any kind of social support or enough money for childcare so that they can work. Not only do some of these individuals end up being incarcerated, but they often go on welfare and cannot afford to have anything other than the very basic necessities. Another issue with drug enforcement policies is that many of the individuals who are incarcerated for such offenses cannot get the treatment that they need while in prison

. If they were able to get the treatment that was necessary for them, it is likely that at least some of them would not go back to this kind of life when they are released from prison.

However, classes and help for these individuals in prison or when they have been newly released from prison are few and far between, and therefore most individuals who are re-released into society after they have committed drug-related crimes will go on to commit others because they do not know any other way of life. Another way that this affects the community is that many individuals in this type of neighborhood will not get the help of the police even when they need it

. They are often afraid that the police will find some evidence of drugs or remember that a particular individual in the family had been arrested for an offense at a previous date. Because of this many women who are battered and abused, and who see their husbands or significant others batter and abused their children will tolerate it and not call the police for fear of the man being arrested

He may beat them and treat them cruelly, but as long as they have a place to live and he allows them to exist there and have food and a bed to sleep in mat night, many will not argue or report their complaint to the police. They fear if he is arrested that they will not have anywhere to sleep and many of them have nowhere else to go, no job, and no actual skills which would allow them to get a job in which they could support themselves and their children

. Because many of the current efforts at law enforcement are concentrated only on those who sell drugs in inner city neighborhoods, racial profiling has become a large problem. There are likely quite a number of individuals who are innocent, but they are charged with crimes simply because they happen to be at the wrong place at the wrong time. They are considered suspicious because of the race that they belong to, and even if they have done nothing wrong it is likely that some of these individuals are arrested simply on the suspicion that they have done something or that they have been involved with someone who has

The argument that was made in the 2001 survey done by the Department of Justice was that individuals in the federal government in no way intended to have any kind of discrimination against African-American individuals

. However, because they were terribly focused on fighting gangs who had large dealings with drug trafficking, the African-Americans were arrested because more of these individuals belonged to the gangs

. This deals with an intent that would indicate that these individuals were not looking for drug crimes based on race. However, it also makes an empirical statement that the reason that many of these defendants are not white is because the gangs that are engaged in drug trafficking on a large-scale are not white

. It was stated many times by the government that the racial disparity that was found to occur in federal prosecutions was thorough because violent drug gangs had been targeted so heavily and most of these individuals were African-American

It is necessary that something be done, however, about the obvious amounts of racial injustice that exist within the criminal justice system. Naturally, there is a discrimination standard that the Supreme Court deals with and is designed to address the majority of the racial disparity. However, it is horribly inaccurate and because of the difficulty with burden of proof and discovery it is almost ridiculously hard to meet this requirement and get help or assistance from the court in this matter

. Even though it is designed to safeguard against injustice, it is very inadequate in doing so and many innocent individuals are being punished because of their race and no other reason. This is not for a moment to imply that individuals of minority races who commit crimes should not be punished. However, it is accurate to say that they should not be punished at a level greater than their Caucasian counterparts, and that they should not be deliberately targeted in order to see if they have done something wrong.

There have been in the past proposals for legislation that would address some of this but none of them have been successful. Twice there have been attempts to pass a Racial Justice Act, and this legislation has managed to survive through the House of Representatives but has been killed in the Senate

. The Traffic Stops Statistics Act, which is designed to require the race of the driver in all traffic stops, has not yet been enacted

. But the main thing that must be done in order to correct this problem is to change the perception that white individuals have about others who belong to different races

. Many white individuals believe that African-Americans are responsible for most of the crimes in this country because they are convicted and incarcerated in greater numbers. The idea that they are incarcerated in greater numbers is very accurate, but the opinion that they commit more of the crimes is not. Caucasian individuals account for over 67% of all arrests made, and this can reach as high as 80% in some categories

Unfortunately, most individuals are not aware of these statistics and therefore they see crime as being largely an African-American problem. They perceive this to be true, especially with violent crime, and because of this they are more concerned about the black individuals that live across town that they are about the white neighbors that lived down the street that may actually be much more dangerous. One of the main reasons for this is that black individuals are arrested on drug offenses in greater numbers

. However, it is important to remember that when police arrest individuals for drug crimes this is largely discretionary. This is one of the main reasons that black individuals believe that they are being targeted at a higher rate then Caucasian individuals what it comes to drug crimes, because officers who find drugs on white individuals or on their property can use their own discretion and not arrest them. The same is true for black individuals, but it appears that they are still arrested at a higher rate regardless of whether the officer has the opportunity to allow them to leave without being arrested

There are some categories of crimes where African-Americans do commit more offenses. However, even when the sentencing is adjusted to reflect this, there is still a racial disparity of 20% that remains completely unexplained

. This represents many individuals who have been unfairly targeted and incarcerated based only on their race and not on any particular crime that they may have committed. It is quite unlikely that the Supreme Court is going to be moved to action even though the evidence of racial disparities continues to increase. It would seem that the main way to change individuals' perceptions and the legislation that governs much of what happens to African-Americans in the criminal justice system would be the democratic process

. The priorities of law-enforcement officers in this country must be changed so that they do not automatically target black or Hispanic individuals for crimes

However, this is much easier said than done as many individuals have been raised with particular prejudices and biases that still show up even though they have grown up and realized that much of what they may have thought about other individuals may not be accurate. Despite that, the differences between black and white seem to remain ingrained and many individuals have a difficult time overlooking this and attempting to realize the fact that all individuals are created equal. It is only when this issue is realized and truly believed in the hearts of all individuals in this country that anything will change about the way the African-Americans and other minority individuals are targeted for crimes. This appears to be an unsolvable problem, because the opinions that individuals hold about race will not likely be changed at any point.

The country has come far in the way that African-Americans are treated, but it still has much farther to go and it is moving at such a slow pace that one is left to wonder if it will ever arrived at a point where African-Americans, Hispanics, Caucasians, and all others of any race or nationality that make up the United States will ever truly be equal in the eyes of the law.

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