Mandatory sentencing guidelines and racial disparities in federal drug convictions

Racial Discrimination in the Courts

In the past few decades, the media has publicized the overcrowding of the United States prison system, raising concern among the families of prisoners, correctional facilities and government officials alike. Although with this overcrowding is the issue that the majority of the prison population consists of minorities, thus raising the debate regarding racial discrimination upheld by the court system. Prison-related research indicates that mandatory sentencing guidelines and a growing number of drug-related convictions are factors in a continued growth of inmates held in federal, state and local prisons and jails in the United States. All state and federal prisons appear to be overcrowded, some as much as 33% higher than their official capacities. Statistics indicate that sixty-eight percent of prison and jail inmates were members of racial or ethnic minority groups. According to the research, white non-Hispanics comprise 43.6% of the local jail population, blacks 39.2%, Hispanics 15.4%, and other races (Asians, American Indians, Alaska Natives, Native Hawaiians and other Pacific Islanders) 1.8% (Evaline, 2007). Black guards comprise only 3% of the prison workforce, and Hispanics represent less than 1% of the guard force (Evaline, 2007). These numbers indicate the clear over-representation of minorities in the prison system; this paper will analyze and discuss judicial discrimination and the manner in which the courts treat different ethnic and minority groups.

Racial Discrimination as a result of the Mandatory Sentencing Guidelines review of the literature reveals that the core of judicial and racial discrimination in the courts is based on the problems resulting from the mandatory sentencing laws and their reforms. In 1986 Congress enacted mandatory minimum sentencing laws, which forced judges to deliver fixed sentences to individuals convicted of a crime, regardless of culpability or other mitigating factors. Federal mandatory drug sentences are determined based on three factors: the type of drug, weight of the drug mixture (or alleged weight in conspiracy cases), and the number of prior convictions (Drug Policy Alliance, 2007). In determining these sentences, judges are unable to consider other important factors such as the offender's role, motivation, and the likelihood of recidivism. Only by providing the prosecutor with "substantial assistance," (information that aids the government in prosecuting other offenders) may defendants reduce their mandatory sentences (Drug Policy Alliance, 2007). Research blames the incentives related to providing false information by individuals charged with drug offenses in order to receive a shorter sentence. The original intent of mandatory sentencing was to target "king pins" and managers in drug distribution networks, however in reality only 5.5% of all federal crack cocaine defendants and 11% of federal drug defendants are high-level drug dealers.

Numerous studies as well as the U.S. Sentencing Commission and the Department of Justice have both concluded that mandatory sentencing fails to deter crime. Furthermore, mandatory minimums have worsened racial and gender disparities and have contributed greatly toward prison overcrowding (Drug Policy Alliance, 2007). Mandatory minimum sentencing has been widely criticized and being both costly and unjust, and fails to eliminate sentencing disparities. The strongest argument against mandatory sentencing is that it is responsible for sending record numbers of minorities to prison. Statistics indicate that more than 80% of the increase in the federal prison population from 1985 to 1995 was due to drug convictions by minorities. In the years after Congress enacted the federal mandatory drug sentences, the average federal drug sentence for African-Americans was 11% higher than for whites. Furthermore, four years later, the average federal drug sentence for African-Americans was 49% higher (Drug Policy Alliance, 2007). Thus, the percentage of minority inmates in U.S. prisons has increased sharply since federal sentencing guidelines took effect, with blacks generally receiving harsher punishments than whites.

The U.S. Sentencing Commission conducted a 15-year study that examined whether uniformity in punishments resulted from the mandatory sentencing laws. The U.S. Sentencing Commission concluded that disparities existed among races and regions of the country. The percentage of whites in prison dropped sharply from nearly 60% in 1984 to about 35% in 2002 (Drug Policy Alliance, 2007). The U.S. Sentencing Commission attributed this decrease to a dramatic growth in Hispanics imprisoned on immigration charges, from 15% to 40%. The mandatory sentencing laws also widened the gap between sentences for blacks and whites; blacks and whites received an average sentence of slightly more than two years in 1984, blacks stayed in prison for about six years, compared with about four years for whites (Drug Policy Alliance, 2007). An estimated 12% of all black males in their twenties were in jails or prisons in June of 2006, as were an estimated 3.7% of Hispanic males and 1.6% of white males of the same age (Montaldo, 2007). Further statistics reveal that one out of every 28 black males are in state prison but only one out of 506 white males are in state prison (Montaldo, 2007). Thus, a black male is 18 times more likely to be in state prison than a white male, and about one out of four black males will have spent time in prison during his lifetime.

African-Americans in the Prison System

The increasing number of African-Americans in the prison system can be discussed within the context of a lack of higher education, as well as in terms of racial discrimination. It was not until the 1960s that the number and percentage of African-Americans, increased significantly. Responding to the civil rights movement, higher education opened its doors wider. In 1965, there were 274,000 African-Americans enrolled in institutions of higher education in both undergraduate and graduate programs, 4.8% of the total enrollment of 5,675,000. In 1970, this rose to 522,000, or 7%. By 1976, the increase mounted to 848,000, or 9.8%, and it peaked in 1980 at 1,107,000, or 10.2%.

On American campuses, the experience of increased racial and ethnic diversity is barely twenty years old. Until most recently, it was limited to the increased presence of African-Americans on white campuses. Research indicates that community colleges that have seen the greatest influx of minority students and have adapted the most to their needs. However, not all of these needs have been met, as illustrated in the numerous recent studies conducted by the Department of Education and private research companies.

African-Americans face significant obstacles that are usually not faced by the white culture. For example, these students are increasingly coming from single-parent homes, have experienced mental or physical abuse, have experienced substance abuse, and seek counseling for these personal and family mental health issues while attending college (Angelo, et. al., 1993). The growing violence in some poorer secondary schools and African-American neighborhoods has affected some students' pre-college educational experiences in ways totally foreign to the traditional student, and most of today's teachers were these traditional college students (Josephson, 1998). The 1998 Report Card on the Ethics of American Youth, Survey Data on Youth Violence portrays a troubling picture of the attitudes and actions of America's youth regarding guns and violence. Unfortunately, the African-American population is a significant factor in these studies. According to the 1998 data, 24% of African-American male high school students, and 18% of African-American male middle school students, say they took a weapon to school at least once in the past year (Josephson, 1998). Additionally, in the 1998 study, males were substantially more likely to carry weapons than females and older students were more likely to carry weapons than younger ones. 5% of all African-American students 10 to 12 years of age reported to have taken a weapon to school (Josephson, 1998). 6% of all 13 to 14-year-olds reported to have taken a weapon to school (Josephson, 1998). On a separate question, 14% of African-American males in high school, and 9% of those in middle school, said they "sometimes" carried a weapon to school for protection (Josephson, 1998).

More disturbing, 59% of males in high school, and 35% of those in middle school said they could get a gun if they wanted to (Josephson, 1998). 70% of all high schoolers and 73% of all middle schoolers said they hit a person in the last twelve months because they were angry (Josephson, 2000). Problems such as these further the potential for incarceration and involvement in the drug trade. Furthermore, nearly one in six students African-American students reported to having been drunk during the past year and 9% said they were drunk two or more times (Josephson, 2000). A great number of these students have faced legal problems related to drugs, violence, and drug dealing. Many students drop out of high school as a result of the easy seduction of selling drugs, instead of completing high schools with no opportunity to attend college. For these students, the "get rich quick" route is a better alternative to working a minimum wage job. As a result, instead of attending college, many of these youths receive mandatory sentences for violating the drug laws, at a very early age. The mandatory sentencing laws do not operate in connection with the American educational system. For example, the mandatory minimum laws for crack cocaine and powder cocaine remove from the hands of judges and other court officials the ability to examine the individual circumstances of each case before sentencing. A judge's discretion can mean the difference between a young African-American person going to jail and having his or her life irreparably damaged or being placed in a program that might have a chance to save a human being.

While judges cannot be caseworkers, they can look at the circumstances of a young offender's life to make rational and reasoned evaluations of someone's risk to society. This can be demonstrated though the example of a crack addicted mother who passes her habit to her infant. Instead of a mandatory sentence, this individual needs assistance to first overcome her addiction and educational and employment opportunities, so that she can support her child. In addition, mandatory minimum sentencing laws do not offer assistance in situations such as this. They unfairly punish African-American and Hispanic defendants as compared to whites who commit similar crimes. Nowhere is this more evident than in the examination of the disparate sentencing laws surrounding the possession or distribution of crack cocaine as compared to powder cocaine. For example, under the current sentencing mandates passed by Congress, an African-American young person convicted of trafficking in five grams of crack cocaine receives a five-year mandatory minimum penalty. An African-American young person selling the same amount of powder cocaine would be charged with a misdemeanor offense punishable by a maximum of one year. It would take possession of 500 grams of powder cocaine to receive the same five-year mandatory sentence the defendant with 5 grams of crack receives. It has been argued countless times that this statutory 100 to 1 ratio of powder to crack has relegated a disproportionate number of black and Hispanic youth to long-term prison sentences that have stigmatized them for life.

In these instances, researchers have offered ideas that instead of dismantling educational opportunities for poor African-American communities, target more resources toward programs that work to rebuild affected neighborhoods. Currently, the federal government spends $15 billion each year on law enforcement, treatment and prevention programs in its war on drugs. For example, an anti-drug initiative could potentially call for a $200 million allocation for drug courts to treat low-level or first-time non-violent drug offenders, especially African-American youths. This assistance of young minorities through mentoring and educational programs at an early age is a critical component in crime prevention programs. Young African-American prisoners must be treated for their drug addictions. Given the overwhelming rise in the number of African-American young drug offenders serving mandatory minimum sentences and the number of these prisoners who will be released from prison, treating prisoners for their drug addiction is in society's best interest.

Hispanics in the Criminal Justice System

Similar to African-Americans, research indicates that Hispanics are overrepresented in the nation's criminal justice system. Statistics reveal that Hispanic defendants are imprisoned at a rate of three times as often and detained before trial for first-time offenses almost twice as often as whites, despite being the least likely of all ethnic groups to have a criminal history. In the year 2000, Hispanics represented 13% of the U.S. population, but accounted for 31% of those incarcerated in the federal criminal justice system. Researchers at Michigan State (2007) found that Hispanics have one chance in six of being confined in prison during their lifetimes. Research studies conducted by the Bureau of Justice Statistics and the U.S. Census Bureau confirm the criminal justice system's discriminatory practices against Hispanics, the nation's largest and fastest-growing minority population. The Bureau of Justice Statistics attributes these discriminatory practices against Hispanics as a result of policy initiatives, including the mandatory minimum sentencing laws that also affect African-Americans. The war on drugs and the war on crime have also caused incarceration rates for low-level drug offenses and immigration violations to skyrocket (Michigan State, 2007).

However, unlike African-Americans, Hispanic offenders in the criminal justice system experience additional problems, such as the lack of bilingual and culturally competent personnel in law enforcement and court proceedings, which thus leads to higher arrest and incarceration rates for Hispanics. In addition, disproportionate sentencing of Hispanics has been attributable to damaging media portrayals that create negative public perceptions and prejudices of Hispanics in general (Michigan State, 2007). Other racial discrimination issues include discrimination during arrest, prosecution and sentencing, and the fact that Hispanics are more likely to be incarcerated than whites charged with the same offenses. Problems at the arrest stage include racial profiling and targeting poorer, "high crime" neighborhoods, which impacts people of color (Michigan State, 2007). Michigan State (2007) also reports that Hispanics are disproportionately represented by publicly appointed legal counsel, who are often overworked and underpaid. For example, of those Hispanic defendants found guilty in large state courts from 1994 to 1998, 71% represented by public counsel were sentenced to incarceration, as compared to 54% of defendants with private attorneys.

Finally, Hispanics are disproportionately charged with nonviolent, low-level drug offenses. Although federal health statistics show that per capita drug use rates between whites and minorities are remarkably similar, Hispanics were arrested by the Drug Enforcement Agency in 2001 at a rate nearly three times their proportion in the general population, and they accounted for nearly half (43%) of the individuals convicted of drug offenses in 2000 (Michigan State, 2007). Unlike other minority groups and the white population, Hispanics constitute the vast majority of those arrested for immigration violations. Arrests for immigration offenses increased 610% over 10 years - from 1,728 in 1990 to 12,266 in 2000 (Michigan State, 2007). Research indicates that even offenses considered misdemeanors under state law, such as shoplifting or fighting at school can lead to deportation measures. Therefore, while African-Americans suffer judicial discrimination as a result of the mandatory sentencing guidelines, Hispanics suffer in other ways, such as deportation and translation issues.

Statistics of Racial Discrimination in the Courts

As indicated above by the African-American and Hispanic experiences in the court system, racial discrimination has emerged as a very serious problem in the courts. A total of 98% of the judges in the U.S. are white while most of the people receiving prison terms or the death sentence are blacks or other minorities (Randall, 2000). Furthermore, twelve percent of the U.S. population are African-American; nearly half of the two million prison inmates in the U.S. are black, and another 16% are Latin American (Randall, 2000). Research indicates that black men are eight times more likely to be in prison than white men, with an incarceration rate of 3,408 per 100,000 black males compared to the rate of 417 per 100,000 white males (Randall, 2000). In 11 states, the incarceration rate of African-American men is from 12- 26 times greater than that of white men (Randall, 2000). In studies conducted by the U.S. Department of Justice, 9.4% of all black men at the age of 25-29 years were in prison in 1999, compared to one percent of white men in the same age group. In 1999, the juveniles belonging to minority groups constituted one-third of the adolescent population in the United States, but they comprised two-thirds of the young people confined in local detention and state correctional systems (Randall, 2000). In the same study, the U.S. Department of Justice concluded that one of every three young black people were confined in juvenile facilities or out on bail.

In California, children of color are 6.2 times more likely than white youths to be charged with crimes, and seven times more likely to be sentenced to prison when they are tried as adults (Randall, 2000). Furthermore, the proportion of black men sent to state prisons on drug charges to the state's total population is 13.4 times greater than that of white men (Randall, 2000). The number of black youths sent to correctional facilities for drug offenses is 48 times higher than that for whites. The U.S. Department of Justice released statistics indicating that in at least 15 states, the number of African-American men sent to prison on drug charges is 20 to 57 times more often than white men. In seven states, 80 to 90% of all drug offenders are black men. Although the majority of crack cocaine users are white, almost 90% of convicted federal drug offenders are black (Randall, 2000). Numbers involving the application of the death penalty to prisoners in the United States also reveal the disparate sentencing received by minorities. For example, in the 200-plus years since the U.S. was founded, a total of 18, 000 people have been sentenced to death; only 38 of them were white, accounting for 0.2% of the total. Between 1977 and 1998, African-Americans comprised 10 to 12% of the total U.S. population; however, out of the 5,709 people sentenced to death, 41% were black (Randall, 2000). Finally, in another report from the Department of Justice, in the past five years, lawyers proposed to sentence 183 offenders to death, 20% of them were whites, nearly half of them were blacks, around 30% were Latin Americans and the rest of were other minorities. Of all death penalty sentences upheld by the U.S. federal courts since 1995, the number of colored people accounts for 74% (Randall, 2000). The ratio of African-American and white murder victims was almost the same; however, since 1997, 82% of the total number executed were African-Americans who had murdered white people (Randall, 2000).

Proposed Solutions to Combat Judicial Discrimination of Minorities

As indicated above, the United States court system faces a desperate need for reform measures to combat the judicial discrimination of minorities. The statistics of minorities in prison reveal the overrepresentation of African-Americans, Hispanics and other minorities in arrest rates, juvenile institutions, and adult incarceration rates. Those in favor of mandatory sentencing laws argue that these rates of minorities are so high not because sentencing disparity, but because of their status in society. For example, the high rates of African-American offenders with drug cases is attributable to drug legislation aimed primarily at poor people living in poor neighborhoods where the drug of choice is crack cocaine. Proponents of mandatory sentencing laws also argue that high arrest rates for African-Americans may have more to do with police discretion than with committing the crimes themselves. Additionally, the movie business has created stereotypes of criminals as minorities by disproportionately portraying offenders as minorities. Movies also do not tend to portray minorities as crime victims. As a result, in the movie business minorities are more likely to be portrayed as offenders rather than as victims. In society, minorities become stigmatized as offenders rather than victims. One method of combating this stigmatism would be to have an equal balance of all races portrayed as offenders and victims.

The juvenile justice system also plays a role in assisting the racial discrimination by the courts. Juveniles are transferred to adult courts to control and punish minority youth rather than youth in general. Researchers have argued that politicians typically support such policies because of public pressure, which stems from the media's perceptions of minorities and fear of crime. Minority juveniles transferred to adult facilities in response to public policies results in racially disparate rates of transfers to adult court. This does not resolve the issue, because research suggests that treating juveniles as adults has no deterrent effect on serious juvenile crime. Juvenile diversion programs in the United States have generally been based on the premise that early intervention reduces the likelihood that youths will later end up in the criminal justice system. Many youth policy advocates assert that delinquency prevention resources should target youths who are experiencing early warning signs of chronic problems (Macallair, 2007). Historically, the research indicates that prevention and early intervention programs are a cost-efficient and more effective way to intervene early in an offender's life. Diversion programs involve five main goals: 1) the avoidance of negative labeling, 2) the reduction of unnecessary social control, 3) the reduction of recidivism, 4) the provision of service, and 5) the reduction of justice system costs (Macallair, 2007). Most diversion programs are administered either by local police departments of community-based organizations. At these agencies, youths are required to complete certain requirements, such as formal counseling, in exchange for charges being filed against them.

There are two over-arching concepts contained in juvenile diversion programs, whether for pre-trial alternatives to incarceration, alternative sentencing options, or reentry programs after incarceration, that are deemed vital to the success of the program: community collaboration and risk assessment (Altschuler et.al., 1999). The first aspect relevant to the success of a juvenile diversion program is community collaboration, or where the courts, judges, prosecutors, probation personnel and detention facilities work together to establish alternative programs with common goals. Risk assessment involves adequate screening and intake procedures to differentiate between juvenile offenders that are deemed high risk for further criminal behavior and requiring confinement, and those low-risk offenders more amenable to alternative community-based programs (Altschuler et.al., 1999). Most intake risk assessments are based on the following criteria: 1) the seriousness of the crime, 2) prior adjudications, 3) current legal status, and 4) prior history with rehabilitation and/or sentencing programs. Post-disposition alternatives are diversion programs that are community-based alternatives for low-risk adjudicated juvenile offenders. These community-based alternatives include home confinement, group homes, staffs secure residential programs, school-based probation, targeted interventions and community service programs. School-based probation and supervision has been most commonly cited as a significant element of juvenile diversion programs. This is because the majority of youths spend a great deal of time in school and are subject to negative peer influences, which can lead to acts of delinquency.

Research has also shown that community groups must be engaged to create and support pro-social community activities in which youth can succeed.

A variety of institutional and aftercare programs aimed at helping juvenile offenders develop into useful, law-abiding citizens have been developed and successfully implemented. Other research has included early court intervention before the emergence of serious, violent, and chronic delinquency emerges, where a juvenile's risks and needs can be identified and matched to the intervention. According to the Office of Juvenile Justice (1999), diversion programs should concentrate on changing negative behaviors by requiring juveniles to recognize and understand thought processes that rationalize negative behaviors. Diversion programs must also promote healthy bonds with members within the juvenile's family, peer, school, and community network and have a comprehensible and predictable path for client progression and movement. Each program level should be directed toward and directly related to the next step, and have consistent, clear, and graduated consequences for misbehavior and recognition for positive behavior (Office of Juvenile Justice, 1999). Finally, these programs must provide an assortment of highly structured programming activities, including education and/or hands-on vocational training and skill development and integrate delinquent and at-risk youth into generally pro-social groups to prevent the development of delinquent peer groups (Office of Juvenile Justice, 1999).

In order to combat the issue of police profiling and ultimately resulting in minority youth ending up in the criminal justice system, these minorities could be guided to pre-charge diversion programs. Pre-charge diversion programs are diversion programs that are usually implemented by local police departments. Police diversion has been criticized by some, based on the fact that its attempts simply have the unintended effect of increasing the number of juvenile offenders who come to the official attention of the justice system and creating a permanent record of their contacts. Dunford et.al. (1977) studied police diversion programs and does not offer strong support for them in their research. The research conducted by Dunford et.al. (1977) suggested several reasons to exercise care in considering police diversion of juveniles to programs intended to assist them. For example, youth who would otherwise be screened out by police are placed in programs under the reasoning that they are in need of corrective treatment. As a result, many youths either receive no services at all or receive service which is irrelevant to their needs. Thus, these juveniles receive no benefits from the police diversion. Another issue brought by Dunford et.al. (1977) is that since many youth service agencies are under such pressure to be cost-efficient, they will accept large numbers of clients even though they are under-resourced to serve a small percentage of them.

One example of a successful pre-charge police diversion program is the Juvenile Curfew Diversion Program, created in 1993 by the City of Phoenix Police Department and the Parks, Recreation and Library Department. This program is aimed at juveniles that violate the curfew restrictions in Phoenix, and under the program, police officers transport youth in violation of this ordinance to the nearest city recreation center acting as a curfew facility. Youth are informed of the curfew ordinance and are detained until a parent or guardian arrives. The diversion program offers first-time offenders an opportunity to attend a diversion class for them and their parents or guardian. The four-hour parenting class covers decision-making skills, consequences of negative behavior, parenting skills, conflict resolution and communication skills. Police diversion has been labeled as not the best method of juvenile diversion because the negative connotations associated with the delinquent act follow the youth and can have potential affects on future dispositions in ways which are unintended. Thus, pre-charge diversion methods run the risk of becoming counter-productive. Additionally, pre-charge police diversion runs the risk of higher rates of detention, and the failure to live up to program expectations may increase the juvenile offender's chances of receiving a stiff penalty if returned for processing in the criminal justice system.

In order to combat racial discrimination caused in jury selection, jurors can be split off into two groups, where half of the jurors come from the majority and the other half from minority groups. This way the jury would consist of a jury of the minorities peers, making the jury selection process fairer. The final jury would then be chosen by selecting from the eligible pool those jurors who share racial, cultural, and other similar characteristics as the defendant. In this way attorneys would not need to be sanctioned, and the minority defendant would be treated fairly.

Conclusion

Finally, as the research above indicates, minorities such as African-Americans and Hispanics continue to face racial discrimination in the United States courts. While there are potential solutions to this problem, the courts must re-examine the mandatory sentencing guidelines and examine better processes in the court system so that all individuals may receive equal treatment. This issue is far from being solved; thus more research is needed to find a successful long-term solution.