Racial Disparity in Sentencing Introduction

Racial Disparity in Sentencing

INTRODUCTION recent Pew Center Report published in 2007 relates that presently one in every one hundred adults in America is in prison. Moreover, one in every fifteen black men in America is in a U.S. prison.

The fact is that a great racial disparity exists in the U.S. sentencing of prisoners, as this work will demonstrate. Racially disparity exists "when the proportion of a racial or ethnic group within the control of the system is greater than the proportion of such groups in the general population." (the Sentencing Project, 2000)

RACIAL DISPARITY in SENTENCING CONFIRMED by RESEARCH

The work of Kansal (2005) a publication of the Sentencing Project states: "The intersection of racial dynamics with the criminal justice system is one of longstanding duration. In earlier times, courtrooms in many jurisdictions were comprised of all white decisionmakers. Today, there is a more diversity of leadership in the court system, but race still plays a criminal role in many criminal justice outcomes." (Kansal, 2005; p. 3) Kansal (2005) relates key findings in research to include that: (1) young, black and Latino males are subject to particularly harsh sentencing compared to other offender populations; (2) Black and Latino defendants are disadvantaged compared to white with regard for legal process related factors such as the 'trial penalty', sentence reductions for substantial assistance, criminal history, pretrial detention, and type of attorney; (3) Black defendants convicted of harming white victims suffer harsher penalties than blacks who commit crimes against other blacks or white defendants who harm whites; and (4) Black and Latino defendants tend to be sentenced more severely than comparably situated white defendants for less serious crimes, especially drug and property crimes. (2005; p. 4) Kansal reports that the Sentencing Project report examines evidence relating to racial discriminatory sentencing related to: (1) direct racial discrimination; (2) interaction of race/ethnicity with other offender characteristics; (3) interaction and direct effects of race/ethnicity and process-related factors; (4) Interaction of race of the offender with race of the victim; (5) interaction of race/ethnicity and type of crime; and (5) capital punishment. (p.5) Key findings in the area of 'direct racial discrimination' are stated to include: (1) There is evidence of direct racial discrimination (against minority defendants in sentencing outcomes); (2) Evidence of direct discrimination at the federal level is more prominent than at the state level; (3) Blacks are more likely to be disadvantaged in terms of sentence length at the federal level, whereas Latinos are more likely to be disadvantaged in terms of the decision to incarcerate; and (4) at the state level, both Latinos and blacks are far more likely to be disadvantaged in the decision to incarcerate or not, as opposed to the decision regarding sentence length." (Kansal, 2005; p. 6) Kansal (2005) states key findings in the area of 'interaction of race/ethnicity with other offender characteristics' to include findings of: (1) Young and black Latino males tend to be sentenced more severely than comparably situated white males; (2) Unemployed black males tend to be sentenced more severely than comparably situated white males. (p. 9) Kansal states that key findings in the area of 'interaction and indirect effects of race/ethnicity' include the findings of: (1) Blacks pay a higher "trial penalty" than comparably situated whites; (2) Whites receive a larger reduction in sentence time than blacks and Latinos for providing "substantial assistance" to the prosecution; (3) Blacks and Latinos with a more serious criminal record tend to be sentenced more severely than comparably situated whites; (4) Blacks are more likely to be jailed pending trial, and therefore tend to receive harsher sentences; and (5) Whites are more likely to hire a private attorney than Latinos or blacks, and therefore receive a less severe sentence. (p. 11) Key findings in the area of 'interaction of race with the offender with race of the victim' reveals: "Black defendants who victimize whites tend to receive more severe sentences than both blacks who victimize other blacks, and whites who victimize whites." (Kansal, 2005; p. 13) in the area of 'interaction of race/ethnicity and type of crime' findings stated are: (1) Latinos and blacks tend to be sentenced more harshly than whites for lower-level crimes such as drug crimes and property crimes; and (2) Latinos and blacks convicted of high-level drug offenses also tend to be more harshly sentenced than similarly situated whites. (Kansal, 2005; p. 14) in the area of 'capital punishment' key findings include the following facts: (1) in the vast majority of cases, the race of the victim tends to have an effect on the sentence outcome, with white case more often resulting in death sentences; and (2) in some jurisdiction the race of the defendant also affects sentencing outcomes, with minority defendants more likely to receive a death sentence than white defendants. (Kansal, 2005; p.16)

II. WHY RACIAL DISPARITY in SENTENCING EXISTS

The work of David B. Mustard entitled: "Racial, Ethnic, and Gender Disparities in Sentencing: Evidence From the U.S. Federal Courts" reports examination of 77,236 federal offenders who were sentenced under the Sentencing Reform Act of 1984 and concludes: "First, after controlling for extensive criminological, demographic, and socioeconomic variables..." findings of the study include: "...blacks, males, and offenders with low levels of education and income receive substantially longer sentences." (2001; p. 1) Secondly, Mustard states findings that disparities: "...are primarily generated by departures from the guidelines, rather than differential sentencing within the guidelines. Departures produce about 55% of the black-white difference and 70% of the male-female difference." (2001; p. 1) Third stated by Mustard in the study report is: "...although black-white disparities occur across offenses, the largest differences are for drug trafficking. The Hispanic-white disparity is generated primarily by those convicted of drug trafficking and firearm possession/trafficking." (2001; p.1) Finally, Mustard states findings that blacks and males: "...are also less likely to get no prison term when that option is available; less likely to receive downward departures; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites and females." (2001; p. 1) Mustard reports in relation to the USSC Sentencing Guidelines, that "the sentences for offenders convicted in federal courts are determined by a detailed set of rules developed in the United States Sentencing Commission. The USSC's "principal purpose is to establish sentencing policies and practices for the federal criminal justice system that will ensure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes." (p. 289) Mustard reports that an indication from Congress was that "honesty, uniformity and proportionality should characterize the USSC's guideline." (2001; p. 289) Expressly forbid under the law is the use of "race, sex, national origin, creed, religion and socioeconomic status in determining a sentence." (p. 294) However, findings in the study of racial disparities in sentencing show that in reality these factors have greatly affected sentencing in cases as "offenders who did not graduate high school received longer sentences, and offenders with college degrees received shorter sentences..." (Mustard, 2001; p. 295) the largest disparities in sentencing are those for "bank robbery and drug trafficking. About two-thirds of the black-white disparity for drug trafficking is accounted for by departures from the guidelines." (Mustard, 2001; p. 306) Mustard concludes that "blacks and males not only receive longer sentences but also are less likely to receive no prison terms when that option is available, more likely to receive downward departures." (2001; p. 307)

III. WHAT CAN BE DONE to CORRECT RACIAL DISPARITY in SENTENCING

The work entitled: "Reducing Racial Disparity in the Criminal Justice System: A Manual for Practitioners and Policymakers" published by the Sentencing Project in October 2000 relates that there are four primary aspects when addressing the racial disparity that exists in the criminal justice system. Those four are:

1) the problem of racial disparity is one which builds at each stage of the criminal justice continuum of arrest through parole, rather than the result of the actions of any single agency;

2) in order to combat unwarranted disparity, strategies are required to tackle the problem at each stage of the criminal justice system, and to do so in a coordinated way. Without a systemic approach to the problem, gains in one area may be offset by reversals in another;

3) Each decision point and component of the system requires unique strategies depending on the degree of disparity and the specific populations affected by the actions of that component; and (4) Systemwide change is impossible without informed criminal justice leaders who are willing and able to commit their personal and agency resources to measuring and addressing racial disparity at every stage of the criminal justice system, and as a result, for the system as a whole." (the Sentencing Project, 2000)

Addressing the racial disparities in sentencing certainly must begin with the defense of those charged crimes in that defendants should be assured adequate and effective representation. This requires that "the defense bar must advocate for, and the system must provide for, effective representation as soon as possible after arrest." (the Sentencing Project, 2000; p.51) in the sentencing phase of a case, it may be necessary for defense attorneys to "utilize sentencing advocates who can develop sentencing proposals for the court in felony cases and jointly challenge unwarranted disparities at sentencing." (the Sentencing Project, 2000; p.52) Also listed as issues that the Bar and Criminal Defense Attorney Associations could focus upon are: (1) the development and implementation of standards and guidelines for bail, pretrial release, prosecutorial diversion, charge and plea-bargaining;

2) the development and funding of specific efforts to reduce minority representation at all stages of the justice process; and 3) the availability of other resource needs such as community-based alternative sanctions and sentencing advocacy opportunities. (the Sentencing Project, 2000; p. 54)