C. Racial Disparities in Sentencing
African-American males are perpetually being incarcerated at an alarming rate, particularly young African-American males. As stated earlier, one study has determined that 1 in 4 African-American males between the ages of 20-29 is a participant in the criminal justice system, e.g., prison, jail, on probation or parole, whereas for white males in the same age group, the ratio is 1 in 16. Ironically, African-American males make up only 6% of the United States' population, yet make up approximately 44% of jail inmates. Moreover, the Federal Government reports that every young African-American male has a 50% chance of being incarcerated during his lifetime. Are these disparities attributable to African-American males committing more crimes, thus justifying incarceration at a higher rate than white males? Or is there a deeper explanation? There are a number of factors which impact the rate of incarceration of African-American males. Those factors admittedly include the type, kind, and number of criminal activities African-American males commit. However, racial disparities in sentencing practices and policies of the criminal justice system also contribute to the disproportionate number of African-American males in jail.
A number of studies suggest that African-American defendants are more likely to be incarcerated and receive more severe penalties when the victims and the judge are white. Even more shocking is a study conducted by the Federal Judicial Center which reported that, in 1990, blacks received an average of 49% higher sentences than whites in cases involving drug trafficking with possession of a firearm. In 1984, the average sentence for blacks was 28% higher than the average sentence for whites. Similarly, the median sentences for African-American males in state prisons are longer than for white prisoners who also committed violent and drug-related crimes.
In 1984, Congress enacted the Sentencing Reform Act of 1984, which established the United States Sentencing Commission (“Sentencing Commission”). The Sentencing Commission was delegated with authority to promulgate sentencing guidelines for federal courts. In 1987, the Sentencing Commission promulgated the Federal Sentencing Guidelines (“Sentencing Guidelines”), in part, to eliminate racial disparity in sentencing. To accomplish this goal, most of the judges' discretion in sentencing was removed. In its place, the guidelines established minimum sentences for certain offenses.
Approximately five years later, the U.S. General Accounting Office (“GAO”) issued a report indicating that due to “data limitation . . . [it is] impossible to know how effective the Federal Sentencing Guidelines . . . have been in reducing racial and other disparities in the sentences given to similar offenders for similar crimes.” The GAO report, however, indicates that in some areas of the Sentencing Guidelines there are still disparities in sentencing between blacks and whites for the same offense. Further, the GAO report suggests that the way prosecutors plea-bargain with defendants may adversely impact blacks and interfere with the Sentencing Commission's mission of eliminating disparity based on race.
In 1993, the Justice Department released a report which examined whether there were racial and ethnic disparities imposed on federal offenders before and after the guidelines became fully effective. The study found in part that:
During 1986-1988, before full implementation of sentencing guidelines, white, black and Hispanic offenders received similar sentences, on average, in [f]ederal district courts.
Among [f]ederal offenders sentenced under guidelines from January 20, 1989 to June 30, 1990, there were substantial aggregate differences in sentences imposed on white, black, and Hispanic offenders.
During this period, 85% of Hispanic offenders and 78% of black offenders were sentenced to imprisonment, compared with 72% of white offenders.
On average, black offenders sentenced to prison during this period had imposed sentences that were 41% longer than for whites (21 months longer).
A number of states are also researching whether there are racial disparities in state court sentencing. For example, the Minnesota Sentencing Guideline Commission reported that during the 1980's, the number of blacks arrested for narcotics rose by 500%, while the arrest rate for whites for the same offenses rose 30%. This disparity in arrest rates between blacks and whites correlates to a disparity between sentences given to blacks and whites by the courts. The Minnesota Commission also reported the following number of offenders sentenced for felony convictions: “Between 1981 and 1991, the number of cases increased 42% for whites; 53% for American Indians; 204% for African Americans; and 388% for other races. Over half of the increase for African-Americans has occurred since 1987.”
There have been a number of constitutional challenges in court to various provisions of the Sentencing Guidelines, particularly the provision which requires a much stiffer penalty for crack cocaine versus powder cocaine. More blacks are charged with possession of crack cocaine than powder cocaine. This leads to blacks being incarcerated more often and receiving greater penalties. In United States v. Majied, a federal district court deviated from the Sentencing Guidelines because young African-American males were disproportionately impacted by the requirement that they receive a harsher sentence for distribution and possession of crack cocaine. On appeal, the Eighth Circuit vacated the lower court's decision to impose a lesser sentence than was mandated by the Sentencing Guidelines. Even though the courts recognize that blacks are disproportionately impacted by the Sentencing Guidelines, they nevertheless have refused to find any provision of the statute unconstitutional.