Sentencing is arguably the most important stage of the criminal justice system. While policing strategies help determine who will be subjected to the criminal process in the first place, and prosecutorial choices help determine who will be granted leniency from the full force of the law, sentencing is where those earlier decisions bear fruit.
No one who has ever visited a prison and seen human beings locked in cages like animals can ever be unmindful of the enormity of society’s decision to deprive one of its members of his or her liberty. The decision to sentence a convicted criminal to prison has, until recently, been viewed as a profound responsibility, one entrusted solely to impartial judges. Increasingly, however, sentencing has become mundane and mechanistic, a decision effectively controlled by legislators, prosecutors and sentencing commissioners. This change in the culture of sentencing has had disastrous consequences for minorities in the United States.
A. A Brief History of U.S. Sentencing Policy
In the late 18th and early 19th century, federal and state legislators typically set mandatory penalties for violations of law. But more enlightened penological views soon gained favor, and judges were granted discretion to sentence offenders to a range of punishments depending upon the severity of the crime and the character of the defendant.
At several points in this century, most recently in the mid-1980’s, Congress and many state legislatures have enacted laws to deny judges sentencing discretion. These laws establish a minimum penalty that the judge must impose if the defendant is convicted of particular provisions of the criminal code. Mandatory sentencing laws are generally premised on the view that punishment and incapacitation, not rehabilitation, is the primary goal of the criminal justice system.
While they deprive judges of their traditional authority to impose just sentences, such mandatory minimum sentencing laws are not truly mandatory because they provide opportunities for prosecutors to grant exceptions to them. As described in the preceding chapter, prosecutors can choose to charge particular defendants with offenses that do not carry mandatory penalties or they can agree to a plea agreement in which the charges carrying mandatory penalties will be dismissed. And, as also noted earlier, under federal law only the prosecutors may grant a departure from mandatory penalties by certifying that the defendant has provided “substantial assistance” to law enforcement.
Mandatory minimum laws embody a dangerous combination. They provide the government with unreviewable discretion to target particular defendants or classes of defendants for harsh punishment. But they provide no opportunity for judges to exercise discretion on behalf of defendants in order to check prosecutorial discretion. In effect, they transfer the sentencing decision from impartial judges to adversarial prosecutors, many of whom lack the experience that comes from years on the bench.
At the same time that mandatory sentencing laws came back into vogue in the mid-1980’s, a separate movement to establish sentencing guidelines gained favor. Guidelines are a middle ground between unfettered judicial discretion and mandatory penalties. These laws, such as the Sentencing Reform Act of 1984 at the federal level, establish a centralized commission to set a presumptive sentencing range and to enumerate sentencing factors that a judge must consider. But they permit judges to depart upward or downward based on unusual factors in an individual case.
Interestingly, some supporters of civil rights championed mandatory sentencing and guideline sentencing as an antidote to perceived racial disparities in sentencing. But the evidence is clear that minorities fare much worse under mandatory sentencing laws and guidelines than they did under a system favoring judicial discretion. By depriving judges of the ultimate authority to impose just sentences, mandatory sentencing laws and guidelines put sentencing on auto-pilot. Discretionary decisions of law enforcement agents and prosecutors engaged in what Justice Cardozo called "the competitive enterprise of ferreting out crime" are more likely to disadvantage minorities than judicial discretion.
The mandatory sentencing movement reached its apex in the mid-1990's when Congress and many states adopted so-called "3 strikes, you're out" laws. Under these statutes, defendants with two prior criminal convictions can be sentenced to life in prison, even if their third "strike" is for relatively minor conduct. Some states, such as Georgia, have enacted even harsher "2 strikes" laws. But again, these mandatory laws are typically invoked by prosecutors who have substantial discretion in choosing which defendants to single out for grossly disproportionate punishments. Once the "3 strike" or "2 strike" statute is invoked, there is often nothing a judge can do to ameliorate the harsh punishment that the legislature has authorized the prosecutor to demand.
The final policy development that has transformed sentencing in the last two decades is the abolition of parole in the federal system and in many states. Indeterminate sentencing, in which parole boards exercised discretion to release defendants from prison based on rehabilitation and good behavior has been discarded in favor of “truth-in-sentencing.” Sentencing is now generally mandatory, determinate and harsh, a volatile mix that has led to dramatically increased prison populations.
One reason sentencing has become uniformly harsher across the country is that the federal government, which previously led only by example, has in recent years established significant financial incentives for states to revise their sentencing laws on the federal model.The federal criminal code is notoriously irrational and the federal sentencing system is a patchwork of overly simple mandatory minimums and overly complex sentencing guidelines. Nonetheless, many states have tailored their sentencing systems to congressional specifications, contributing to the headlong rush to incarcerate.
B. The Result of Tough-on Crime Sentencing Policies
Some politicians treat sentencing policy as an opportunity for demagoguery, but the combined effect of the various sentencing laws enacted in the past three decades is anything but rhetorical. In 1972, the population of federal and state prisons combined was approximately 200,000. By 1997, the prison population approached 1.2 million, an increase of almost 500 percent. Similar developments at the local level led to an increase in the jail population from 130,000 to 567,000. Thus, America now houses some 2 million people in its federal and state prisons and local jails.
Prison and jail populations have not only swelled in the last 30 years, they have also changed in character. As a result of the nation’s current “War on Drugs” which began in the early 1980’s, an increasingly large percentage of those incarcerated have been charged with or convicted of non-violent drug crimes.
Between 1980 and 1995, the number of state prisoners locked up for drug crimes increased by more than 1000 percent. Whereas only one out of every 16 state inmates was a drug offender in 1980, one out of every four in 1995 was a drug offender. By the middle of the 1990’s, 60 percent of federal prison inmates had been convicted of a drug offense, as opposed to 25 percent in 1980. If local and county jail inmate populations are included in the calculation, there are now some 400,000 federal and state prison inmates – almost a quarter of the overall inmate population - serving time or awaiting trial for drug offenses. Drug offenders accounted for more than 80 percent of the total growth in the federal inmate population – and 50 percent of the growth of the state prison population – from 1985 to 1995.
The chances of receiving a prison sentence after being arrested for a drug offense increased by 447 percent between 1980 and 1992. The number of state prison drug sentences between 1985-1995 increased 331 percent, and represented more than half of the overall increase in state sentences meted out during that period. The effect of drug sentences on the federal system is even more pronounced. The number of federal drug sentences imposed between 1985 and 1995 increased 478 percent, and accounted for 74 percent of the total increase in federal sentences during that period. Similarly, the length of sentences for drug offenses dramatically increased: Drug offenders entering federal prison in 1986 served an average term of almost 30 months; drug offenders entering federal prison in 1997 were expected to serve an average term of more than twice that length, 66.2 months.
An overly punitive crime control strategy is unwise and ineffective for many reasons, most beyond the scope of this report. But one of the chief failings of undue reliance on imprisonment to solve social problems is that this approach results in serious racial disparities. The “tough on crime” movement of the past several decades have led to incarceration rates for minorities far out of proportion to their percentage of the U.S. population.
C. Racially Disparate Sentencing Outcomes
One of the most thorough studies of sentencing disparities was undertaken by the New York State Division of Criminal Justice Services, which studied felony sentencing outcomes in New York courts between 1990 and 1992. The State concluded that one-third of minorities sentenced to prison would have received a shorter or non-incarcerative sentence if they had been treated like similarly situated white defendants. If probation-eligible blacks had been treated like their white counterparts, more than 8000 fewer black defendants would have received prison sentences in that two year period, resulting in a five percent decline in the percentage of blacks sentenced to prison as a percentage of the entire sentenced population. In short, the study found, blacks are sentenced to prison more frequently than whites for the same conduct.
Other sentencing data is consistent with the New York findings. Nationwide, black males convicted of drug felonies in state courts are sentenced to prison 52 percent of the time, while white males are sentenced to prison only 34 percent of the time. The ratio for women is similar – 41 percent of black female felony drug offenders are sentenced to prison, as compared to 24 percent of white females. With respect to violent offenses, 74 percent of black male convicted felons serve prison time, as opposed to only 60 percent of white male convicted felons. With respect to all felonies, 58 percent of black male convicted felons, as opposed to 45 percent of white men, serve prison sentences.
Some of these aggregate statistics do not control for a defendant’s prior criminal record, but even that is not a neutral basis for comparison because racial profiling, prosecutorial discretion and juvenile justice decision-making make minorities more likely to acquire a criminal record than their white counterparts. And at least one study that examined only defendants without criminal records found that Hispanics and blacks with no prior record were disproportionately likely to be sentenced to prison than white defendants with no prior record. Indeed, Hispanics were twice as likely as whites to draw a prison term as opposed to probation, a fine or time in a county jail.
Racial disparities can be found not only in the fact of incarceration, but in the length of prison or jail time served. According to a Justice Department review of state sentencing, whites who serve time for felony drug offenses serve shorter prison terms than their black counterparts: An average of 27 months for whites, and 46 months for blacks. These discrepancies are mirrored with regard to non-drug crimes. Whites serve a mean sentence of 79 months for violent felony offenses; blacks serve a mean sentence of 107 months for these offenses. Whites serve a mean sentence of 23 months for felony weapons offenses, blacks serve a mean sentence of 36 months for these offenses. Overall, whites in state prisons nationwide in 1994 served a mean time of 40 months, as compared to 58 months for blacks.
D. Minority Incarceration Rates
The choice of legislatures to lengthen drug sentences, combined with drug enforcement tactics, has had a disproportionate impact on America’s minorities. As the overall prison population has increased because of the war on drugs, so too has the minority proportion of the overall prison (and drug offender) population. From 1970 to 1984, whites generally comprised approximately 60 percent of those admitted to state and federal facilities, and blacks around 40 percent. By 1991, these ratios had reversed, with blacks comprising 54 of prison admissions versus 42 percent for whites. Other minority groups have also been affected by this trend: Hispanics represent the fastest growing category of prisoners, having grown 219 percent between 1985-1995. The percentage of Asian-Americans in prison has also grown; their percentage of the federal prison population increased by a factor of four from 1980 to 1999.
The changing face of the U.S. prison population is due in large measure to the war on drugs: In 1985, the number of whites imprisoned in the state system actually exceeded the number of blacks. Between 1985 and 1995, while the number of white drug offenders in state prisons increased by 300 percent, the number of similarly situated black drug offenders increased by 700 percent, such that there are more than 50 percent more black drug offenders in the state system than white drug offenders.
Because the overall number of imprisoned drug offenders has increased, and the number of minorities as a percentage of that population has increased, far more minorities than whites are serving time for drug offenses as a percentage of their respective prison populations. As of 1991, 33 percent of all Hispanic state prison inmates, and 25 percent of all black state prison inmates, were serving time for drug crimes, as compared to only 12 percent of all white inmates. By contrast, in 1986, only seven percent of black inmates, and eight percent of white inmates, had been convicted of drug crimes. In other words, the chances are far better that an imprisoned black or Hispanic is serving time for a drug crime than it is that an imprisoned white is serving time for a drug crime.
Minorities are disproportionately disadvantaged by current drug policies. As we have seen, it is not because minorities commit more drug crimes, or use drugs at a higher rate, than white Americans. Drug use rates per capita among minority and white Americans are similar, a fact which, given the Nation’s demographics, means that many more whites use drugs than do minorities. Moreover, as noted earlier, studies suggest that drug users tend to purchase their drugs from sellers of their own race.
Rather, the disproportionate effect of the war on drugs on minorities results from three factors: First, more arrests of minorities for drug crimes; second, overall increases in the severity of drug sentences over the past 20 years; and third, harsher treatment of those minority arrestees as compared to white drug crime arrestees.
As noted, while blacks constitute approximately 12 percent of the population, as well as a similar percentage of U.S. drug users, they constitute 38 percent of all drug arrestees. Given the demographics of the United States, therefore, far more blacks than whites per capita are arrested for drugs, and overall increases in arrests affect more blacks per capita than whites. Indeed, by 1989, with the war on drugs in full force and overall drug arrests having tripled since 1980, blacks were being arrested for drug crimes at a rate of 1600 per 100,000, while whites were being arrested at one-fifth the frequency per capita -- 300 per 100,000. The statistics in certain United States cities were even more eye-catching: In Columbus, Ohio, black males accounted for 11 percent of the total population, and for 90 percent of the drug arrests. In Jacksonville, Florida, black males comprised 12 percent of the population, but 87 percent of drug arrests.
Why are minorities the primary targets of the war on drugs? Much of this discrepancy can be traced to practices such as racial profiling. The assumption that minorities are more likely to commit drug crimes and that most minorities commit such crimes will prompt a disproportionate number of investigations, and therefore, arrests of minorities. Drug arrests are easier to accomplish in impoverished inner-city neighborhoods than in stable middle-class neighborhoods, so the insistence of politicians on more arrests results in vastly more arrests of poor, inner-city blacks and Hispanics. /p>
Blacks are not only targeted for drug arrests. They are also 59 percent of those convicted of drug offenses and, because they are less likely to strike a favorable plea bargain with a prosecutor, 74 percent of those sentenced to prison for a drug offense. Thus, blacks are disproportionately subject to the drug sentencing regimes adopted by Congress and state legislatures. And these sentencing regimes, across all levels of government, increasingly provide for more and longer prison sentences for drug offenders.
Mandatory minimums such as "three strikes" laws result in the extended incarceration of non-violent offenders who, in many cases, are merely drug addicts or low-level functionaries in the drug trade. Indeed, in the first two years after enactment of California’s “three strikes, you’re out” law, more life sentences had been imposed under that law for marijuana users than for murderers, rapists, and kidnappers combined. An Urban Institute study examining 150,000 drug offenders incarcerated in state prisons in 1991 determined that 127,000 of these individuals – 84 percent – had no history of violent criminal activity, and half of the individuals had no criminal record at all. Data from the federal system reveals the same trend. More than half of those sentenced to federal prison in 1992, after the enactment of mandatory minimum sentences for drug offenders, were drug traffickers; of those, 62 percent were considered “low-risk,” based on a lack of prior criminal histories. Yet these low-risk traffickers were expected to serve an average of 51 months in prison, as compared to 17 months for similarly situated federal prisoners who had been sentenced prior to the enactment of mandatory minimums.
While three strikes laws and mandatory minimums limit judicial discretion to reduce prison sentences, they do not reduce prosecutorial discretion over charging and plea negotiations – decisions which will determine whether strict sentencing laws apply. For example, Georgia District Attorneys sought life sentences for 16 percent of black criminal defendants eligible for such sentences under the State’s “two strikes, you’re out law,” which provided for the imposition of a life sentence for a second drug offense. By contrast, Georgia prosecutors sought a life sentence in only one percent of the eligible cases involving white defendants. The result was that 98.4 of those serving life terms under the Georgia statute were black. Similarly, as of 1996, blacks made up 43 percent of Californians sentenced to prison under the State’s “three strikes you’re out” law, despite comprising only seven percent of the total State population.
Much of the discrepancy at the federal level is the result of differences in the federal sentencing of drug offenses involving crack and powder cocaine. These disparities, enacted into law as part of the Anti-Drug Abuse Act of 1986, arise from the different thresholds for the imposition of mandatory minimum prison sentences for crack and powder cocaine dealers. In short, federal law imposes mandatory 5-year federal prison sentences on anyone convicted of selling 5 grams or more of crack cocaine, and 10-year mandatory sentences for selling 50 grams or more of crack. But in order to receive the same mandatory 5- and 10-year sentences for selling powder cocaine, a defendant must be convicted of selling 500 and 5000 grams of powder cocaine.
Studies have shown that blacks and whites convicted of federal powder cocaine offenses go to jail for approximately the same length of time; so too do blacks and whites convicted of crack cocaine offenses. The problem is that, as we have seen, few whites are prosecuted for crack offenses in federal court, and are instead prosecuted in state systems that may not impose mandatory minimum penalties for crack offenses. Indeed, in 1993, 95.4 percent of those convicted for federal crack distribution offenses were black or Hispanic. This despite the fact that, as discussed in Chapter II, the majority of crack users in the United States in that period were white. By contrast, almost one third (32 percent) of those convicted of federal powder cocaine distribution offenses in 1993 were white. The crack/powder sentencing disparity, combined with the almost-exclusive focus on blacks and Hispanics for crack-related federal prosecutions, means that minorities in general serve longer sentences for similar drug crimes than do whites. Combined with the far greater drug arrest rates for blacks than whites, and the general reliance on mandatory minimums for drug crimes, these longer sentences ensure that federal prisons house a disproportionately large number of minorities.
The crack/powder cocaine divide has not escaped the attention of policymakers, although it has escaped resolution. In 1995, the United State Sentencing Commission recommended to Congress that the sentencing guidelines be altered to eliminate the differences in crack and cocaine sentencing thresholds, noting both the inequality inherent in these differences and the cynicism they engender in minority communities. Nonetheless, President Clinton proposed, and Congress passed, legislation rejecting the Commission’s proposed changes. The Commission has since revisited the issue and has recommended a reduction, not an elimination, in the current 100-to-1 disparity, noting again that “[t]he current penalty structure results in a perception of unfairness and inconsistency.” Congress has never acted on this recommendation.
E. The Lighter Side of Drug Policy
The federal and state policies enacted as part of the war on drugs suggest that America is of one mind when it comes to drug policy: Users and sellers of drugs should be severely punished. Yet this is in fact not the uniform response to drug-related activity. Indeed, when it comes to drug use in affluent, largely white communities, the model is rather different.
The experience of Milwaukee, Wisconsin, is typical in this regard. The predominantly white suburbs that encircle Milwaukee have all passed marijuana possession ordinances, whereby an individual found in possession of marijuana is ticketed, as if for a parking offense, but not charged with a crime. The City of Milwaukee, by contrast, charges marijuana possession as a crime, having rejected a proposed marijuana possession ordinance in the mid-1980s. As a result of these discrepancies, the Wisconsin Correctional Service concluded, non-whites were being charged with drug offenses 13 times more frequently than whites. Moreover, authorities in the Milwaukee suburbs generally issued tickets to residents of those suburbs, but typically transported non-residents, including many blacks, downtown for criminal prosecution.
Affluent predominantly white suburban communities have long recognized that the drug war need not be fought only on the incarceration front. Alternatives such as drug treatment and education are mainstays of white, middle-class efforts to eradicate the scourge of drugs from their neighborhoods. A strategy centered on such demand reduction efforts makes sense: The Rand Corporation has estimated that investing an additional $1 million in drug treatment programs would reduce by fifteen times more serious crime than enacting more mandatory sentences for drug offenders. But when it comes to the presence of drugs in inner-city areas, the response of policymakers is to build prisons rather than treatment facilities.