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Racial Disparity in Sentencing

by Michelle Calderon, staff writer for AnaiRhoads.org

10 October 2006

“It is unemployment, the educational system, poverty — and, even though some people do not want to talk about it, racism does play a part in the criminal justice process” (Anonymous, 2006).

AnaiRhoads.org – During earlier times, the criminal justice system was comprised of all white decision-makers. Today, there is more diversity of citizens, offenders, leaders in the court system as well as in the political arena. However, race still plays a critical role in many criminal justice outcomes. One important aspect of the role of race in the justice system relates to sentencing. While racial dynamics have changed over time, race still exerts an undeniable presence in the sentencing process. This ranges from “disparate traffic stops due to racial profiling to imposition of the death penalty based on the race of victim and/or offender” (The Sentencing Project, 2005). Currently in the United States, African Americans criminals are strikingly overrepresented compared to their number in the general population. The idea of a racially discriminatory process violates the ideals of equal treatment under the law as well as under the Constitution that these laws were based on.

Racial discrimination does not exist in the explicit fashion that it did in the United States 50 years ago. Today, racial discrimination in sentencing is often a complex process in connection with other factors and producing racially discriminatory outcomes in certain situations. Racial discrimination in sentencing in the United States today instead, is hidden in such factors as offender characteristics (gender, age, and employment status), the legal process-related factors, the race of the victim, or the nature of the crime.

America’s criminal justice system clearly was racially biased in the past. “Between 1930 and 1964, for example, Louisiana, Mississippi, Oklahoma, Virginia, West Virginia, and the District of Columbia, put to death 67 men for the crime of rape. Not one of the 67 was white. All were black. Is it conceivable that not a single white man committed rape in any of these places over a 35-year period?” (Langan, 1994).

Today, discrimination is much more subtle. However, there exists evidence of racial disparity in sentencing. The national statistics on prison admissions and prison populations acquired data that revealed that the incarceration rates for African Americans and Hispanics are much higher than the rate for whites. “In June 2001, for example, 4,848 of every 100,000 African American men, 1,668 of every 100,000 Hispanic men, and 705 of every 100,000 white men were incarcerated in a state or federal prison or local jail. The incarceration rates for women, although much lower than the rates for men, revealed a similar pattern: 380 of 100,000 for African Americans, 119 of 100,000 for Hispanics, and 67 of 100,000 for whites. Among males between the ages of 25 and 29, the disparities were even larger: 13,391 of every 100,000 African Americans, 4,140 of every 100,000 Hispanics, and 1,821 of every 100,000 whites were incarcerated” (Brazaitis, 1997).

Studies of judges’ sentencing decisions revealed that African American and Hispanic offenders are more likely than white offenders to be sentenced to prison. Those African American and Hispanic offenders who are sentenced to prison receive longer terms than whites do. “From 1988 to 1994, some 38 states and the District of Columbia reported an increase in the racial disparity in their rates of incarceration. Nationally, the black rate of incarceration in state prisons increased from 6.88 times that of whites to 7.66. One in 523 whites in the state will spend some time in prison, while for blacks the number grows to one in 53 ” (Brazaitis, 1997).

Furthermore, the Sentencing Project studies showed that young, black and Latino males (especially if unemployed) are subject to particularly harsh sentencing compared to other offender populations. In the vast majority of cases, if the murder victim is white, the defendant is more likely to receive a death sentence;

· Black and Latino defendants are disadvantaged compared to whites with regard to legal-process related factors such as the “trial penalty,” sentence reductions for

substantial assistance, criminal history, pretrial detention, and type of attorney;

· Black defendants convicted of harming white victims suffer harsher penalties than blacks who commit crimes against other blacks or white defendants who harm whites;

· Black and Latino defendants tend to be sentenced more severely than comparably situated white defendants for less serious crimes, especially drug and property crimes.

· In a few jurisdictions, notably the federal system, minority defendants (especially blacks) are more likely to receive a death sentence. 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;

· 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. (The Sentencing Project, 2005).

Several factors within the criminal justice system reflect some of the disparities mentioned. First, racial profiling is present at the policing stage of the criminal justice system. “When the decision to detain someone is passed on to the patrolman rather than a detective, the result is more arrests of blacks that end in dismissal than arrests of whites that end in dismissal” (Tomic, 2004).

Concerning the prosecution, following the filing of felony court charges, “66 percent of black defendants were subsequently prosecuted (the rest were dismissed). Yet that is slightly less, not more, than the 69 percent of whites. At the stage where felony court charges were filed, “black defendants comprised 53 percent of all defendants, but they comprised 51 percent of those actually prosecuted” (Tomic, 2004).

Similarly, in the adjudication process among blacks prosecuted in America’s courts during the study period, “75 percent were subsequently convicted of a felony offense. This figure is slightly less, not more, than the 78 percent of whites. Despite the small difference, blacks comprised 51 percent of those prosecuted and 51 percent of those convicted of a felony” (Tomic, 2004).

Regarding the effect of the defense attorney on sentencing, whites were much more likely to hire a private attorney than blacks or Latinos. Retention of a private attorney tended to result in less severe sentences.

Still more evidence suggests that the pre-trial status of defendants indirectly affects sentencing patterns according to race. The Sentencing Project “found that black defendants faced a much higher probability of being jailed prior to trial (as opposed to being freed on bond pending trial) than white defendants, and that pretrial detention made incarceration following conviction more likely” (The Sentencing Project, 2005).

Critics of the sentencing process argue that judges, jurors, and other members of the courtroom workgroup sometimes exercise their discretion inappropriately. They “assert that judges impose harsher sentences on African American and Hispanic offenders than on white offenders” (Walker, 2004, p. 203).

However, the different sentences may have been justified by racial differences in legal factors that judges legitimately take into consideration when deciding on a sentence. Judges imprison violent offenders at the highest rate. “10% of blacks had robbery as their conviction offense versus 5 % of whites. Blacks least often had as their conviction offense one of the least severely punished crimes, a public-order offense (18 percent of blacks versus 24 % of whites), which include possession of stolen property, repeatedly driving without a license, and possession of a concealed weapon” (Langan, 1994).

Next is whether more black defendants were repeat offenders, since judges sentence repeat offenders more harshly than first-timers. “Fifty percent of convicted black defendants had one or more prior felony convictions versus 38 percent of whites. Blacks were convicted of offenses that are more serious, had longer criminal records, and were convicted in places that generally meted out more prison sentences (tough-sentencing jurisdictions)” (Langan, 1994).

The political arena affects the outcome of criminal sentencing decisions. For example, elected judges tend to incarcerate more than appointed ones. Appointed judges can be pressured to decrease the number of short-term incarcerations. This behavior allows for the allocation of funds to different pending issues and still appears to be “tough on crime.” “Thus when incentives are strong, elected judges are more accountable to voter concerns than appointed ones” (Tomic, 2004).

Policy choices have also led to increased arrests for drug offenses and mandatory sentences for drug offenders. The single most driving influence on the changing racial complexion of the prison population in the last decade involves the sale and use of crack cocaine. Federal and state penalties for distributing and using crack cocaine are harsher than the penalties for offenses associated with powder cocaine. Additionally, crack is stereotypically a black drug. Powder cocaine transactions are more secret than the street-corner sales of crack. Possession of any amount of crack cocaine (even residue in a crack pipe) is a felony. In contrast, offenses involving the stereotypical white drug, marijuana, may only be misdemeanors.

Capital-sentencing decision requires the individual jurors to focus collective and objective judgment on the unique characteristics of a particular criminal defendant. However, there is an inherent lack of predictability of jury decisions. Jury decision to impose a death sentence involves too many complex considerations. There should be legitimate factors affecting decisions, such as the defendant’s prior record or the seriousness of the offense. Not surprisingly, race is often related to whether a defendant is arrested, convicted, prosecuted, or sentenced severely.

Sentencing is just one phase of the criminal justice process. In summary, the outcomes in this area are reflective of decisions made at prior points in the system. Thus, efforts to reduce racial disparity at sentencing should pay attention to law enforcement arrest decisions, prosecutorial charging practices, indigent defense representation, pre-sentence investigation procedures, and provision of sentencing alternatives options.

However, the criminal justice officials are not the only cause of racial disparity in sentencing. Factors within the system intertwined to produce the high ratios of discrimination. Lifestyle contributes to crime. Education, family upbringing, skills, and much more factors shape individuals. Society cannot deny the influence it has on shaping the lives of individuals. The reasons people live in poverty are lack of education, a devastating life experience, a lack of family support and health problems.

With a large supply of low-paying jobs, crime becomes an option. The education system is not friendly to many minorities, hence the vicious cycle of poverty perpetuates. Poverty often contributes to dropping out, which contributes to more poverty. Poverty is also associated with below-grade performance in school, high suspension, and dropout rates.

In addition, culture follows strongly ingrained traditions and family ties. Many minorities have been slower at moving into the economic mainstream. Perhaps, acculturation needs to take place at a faster pace. Surely, catering to other cultures’ needs (such as acceptance of Spanish written directions in most public places) is aimed to accommodate and ease the integration process. However, the end-result (the slowness to adapting to American culture) would hinder the adapting process into fitting into society mainstream and instead create friction and stereotypes between members of the community.

Perhaps most discouraging, misery measures have not changed substantially despite decades of government policies and programs. The poor want to get out of poverty. Citizens want to be part of the community. The people in poverty, of color, and of differing cultures are a very important piece of what makes it all work as a city, a state, and a nation.

Community leader’s attitude shift reflecting on the members of society’s moral values as well as fears and stereotypes. Society isolates the poor and those different in all ways, fostering their dysfunction by treating them differently. Darwin’s theory of evolution: survival of the fittest is the perception most people hold in society. People want to be the bully, not the bullied. This idea is reflected on public policy planning which seems to aim at those offenders that have little to gain.

Fighting racism means not just toleration but providing education. Education and training, including cultural-sensitivity training, should be top priorities in public programming. Training should not be a one-way exercise but rather an exchange. All people should learn about each other’s cultures and expectations. Education embodies the promise of a better life.

There are many obstacles to education in impoverished and culturally different communities. However, with knowledge and minimal investment, each community can find solutions and ways to educate its citizens. Parent education and early childhood development programs reach children in their early years when brain development is most rapid and the foundations are laid for a lifetime of learning. Transition programs introduce young children to school and help schools welcome children into friendly classrooms where they can learn at a pace and style that is comfortable for them and harmonizes with local culture.

If this fails, there has to be an outlet. Society cannot give up on citizens and accept criminality as part of human nature. Programs need to be mandated to keep professionals in charge of educating society, updated with the latest trends. This includes the correctional facilities, policing policies, current laws being implemented as well as educational training for everyone involved. It is a difficult project but with the right attitude and right intention, more people can be saved from the injustices that seem to hound the criminal justice system.


Brazaitis, T. (1997). Racial Disparity in Incarceration.

Elsasser, G. (1997). Bias no bar to the death penalty: DISPARITIES ‘INEVITABLE’.

Kansal, T. (2005). The Sentencing Project: Racial Disparity in Sentencing.

Langan, P. (1994). No Racism in the Justice System.

McIntyre, M. (1997). Disparity seen in incarceration of blacks more apt to be jailed than whites.

Tomic, A. (2004). The effects of race and judicial selection on the criminal justice process.

Walker, S., Spohn, C. & Delone, M. (2004). The Color of Justice. (203).

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