Private: Racial Disparities in Sentencing: Three Sources and Three Solutions

by Nazgol Ghandnoosh, Ph.D., Research Analyst, The Sentencing Project; author of Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies and Fewer Prisoners, Less Crime: A Tale of Three States (co-authored with Marc Mauer).

*This post is part of our two-week symposium on racial inequalities in the criminal justice system.

Between 2007 and 2009, black men received federal sentences that were 14 percent longer than those for white men with similar arrest offenses, criminal histories and other prior characteristics.  In their Yale Law Journal article, Sonja B. Starr and M. Marit Rehavi show that prosecutors – not judges – have been the “dominant procedural sources of disparity.”  This is because prosecutors were twice as likely to charge black defendants with offenses that carried mandatory minimum sentences than otherwise-similar whites.  Similar patterns emerge at the state level.  Mandatory minimum sentences have therefore not eliminated sentencing disparities by standardizing judicial decisions as some had hoped.  Instead, mandatory minimums have merely transferred power from judges to prosecutors.

In my recent report with The Sentencing Project, I outline the major sources of racial disparity in criminal justice outcomes and highlight recent initiatives for targeting these inequities.  Racially biased use of discretion – not just among prosecutors, but also police officers, judges and potentially even public defenders – is just one source of racial disparity in sentencing.

A second cause is ostensibly race-neutral policies and laws that have a disparate racial impact. For example, drug-free school zone laws mandate sentencing enhancements for people caught selling drugs near school zones.  The expansive geographic range of these zones coupled with high urban density has disproportionately affected residents of urban areas, and particularly those in high-poverty areas – who are largely people of color. A study in New Jersey found that 96% of persons subject to these enhancements in that state were African American or Latino. All 50 states and the District of Columbia have some form of drug-free school zone law.

A third source of unwarranted racial disparity in sentencing is the underfunding of key segments of the criminal justice system and expectations of significant financial outlays from defendants. These policies put low-income people – who are disproportionately black and Latino – at a disadvantage. One example of this is in pretrial detention. Pretrial detention has been shown to increase the odds of conviction, and people who are detained awaiting trial are also more likely to accept less favorable plea deals, to be sentenced to prison, and to receive longer sentences. Seventy percent of pretrial releases require money bond, an especially high hurdle for low-income defendants.

These problems are not intractable.  In fact, more than 20 states have designed initiatives to address these sources of disparity.  Here are three recent reforms.

To address biased use of discretion:

In Milwaukee, prosecutors previously filed drug paraphernalia charges against 73 percent of black suspects but only 59% of white suspects arrested for this offense. Working with the Vera Institute of Justice, the office was able to eliminate these disparities by reviewing data on outcomes, stressing diversion to treatment or dismissal, and requiring attorneys to consult with supervisors prior to filing such charges.

To reduce disparate racial impact of policies and laws: 

Indiana amended its drug-free school zone sentencing laws, which had imposed harsh penalties on a defendant population that was over 75 percent African American in Indianapolis. The reform’s components included reducing drug-free zones from 1,000 feet to 500 feet to account for urban density and requiring that minors be reasonably expected to be present when the drug offense occurs. Connecticut, Delaware, Kentucky, Massachusetts, New Jersey and South Carolina have also amended their laws.

To create a more fair economic playing field:

In 2014, New Jersey reformed its bail system to emphasize risk assessment over monetary bail, a reform that is expected to increase rates of pretrial release.  Previously, the decision to detain defendants was based on their ability to post bail regardless of their risk level.  Judges may now release lower-risk indigent individuals without requiring money bail and may deny pretrial release for high-risk individuals.

Disadvantage accumulating at each step of the criminal justice process contributes to blacks and Latinos comprising 56 percent of the incarcerated population, yet only 30 percent of the U.S. population. The roots of this disparity precede criminal justice contact: Conditions of socioeconomic inequality contribute to higher rates of certain crimes among people of color.  But these three features of the justice system exacerbate this underlying inequality.   

Moreover, by imposing collateral consequences on those with criminal records and by diverting public spending away from preventative measures, criminal justice policies further entrench socioeconomic inequalities. Jurisdictions around the country are developing programs and policies to eliminate these sources of inequity. We must now expand the scale and increase the speed of these efforts.

Criminal Justice, Equality and Liberty, National Security and Civil Liberties, Prison Policy/Incarceration, Racial Justice, Sentencing Guidelines