Sentencing Discrepancies between Minorities and Whites Charged - Research Paper Example

Sentencing Discrepancies between Minorities and Whites Charged s: Introduction Incidences of sentencing discrepancies between minorities and whites even when charged with similar crimes have been rampant for a long time now. In the past, courtrooms in multiple jurisdictions were comprised of white decision makers a factor that was touted as a possible cause for the discrepancies. However, there is more diversity in the leadership of the court system today yet the problem persists and racial discrepancies are still evident in multiple criminal justice outcomes. Race still plays a key role in sentencing regardless of whether the crimes are similar. The prospect of racial discrimination in sentencing violates the ideal of equal treatment that is entrenched in the same law which the criminal justice system is premised (Mustard, 2001). Despite the massive changes in the racial dynamics, racial discrimination in the justice system has only changed in fashion. A considerable number of studies have even indicated that the problem is as evident today as it was 50 years ago. In the mid-20th century, racial discrimination in sentencing was very explicit especially in the American south where blacks and whites were handled different sentences even for similar crimes. Blacks and whites were handled completely differently by the law enforcers and the judicial system. Currently, the criminal justice system is not as explicit as it was then due to the massive advances in the human rights policies, in the United States. However, sentencing today is often surreptitious process a factor that is manifest in the massive numbers of racially discriminatory outcomes in certain circumstances (Hurwitz & Peffley, 2010). Racial disparity in sentencing statistics Statistics from multiple sources shows an indication of racial disparity in sentencing. The two forms of racial disparity in sentencing. First, the population of prison admissions and prison populations in US prisons. Statistics reveals a clear difference in the rates of incarceration for African Americans and Hispanics compared to the rates of whites incarcerated. As of 2004, nearly 5 % of African American men, 2 % of Hispanic men were incarcerated in either state, federal prisons or local jails. These compared to just over o.7 % of white men in the same prisons shows an indication of racial discrimination. The incarceration rates for females also showed similar trends albeit at lower rates. The rates are highest among males aged between 25 and 29. At this age bracket, 12.6 % of black men, 3.6 % of Hispanic men and 1.6 % of white men are incarcerated (Spohn, Gruhl& Welch, 2001). The second type of evidence of racial discrimination in sentencing from recent studies is with regard to the judges sentencing decisions. Numerous studies indicate that an African American or Hispanic man is more likely to be sentenced to prison compared to white counterparts. In addition, the studies indicate that those who are sentenced to imprisonment are sentenced for longer periods than whites. This can be deduced from the incarceration rates,mean sentence lengths for the three groups among other such factors (Spohn,Gruhl& Welch, 2001).For instance, black and Hispanic offenders sentencedunder the federal sentencing guidelines between 2002 and 2005 in three district courts received more harsh sentences than white offenders. The incarceration rates were 98 %, 94 % and 85 % for Hispanics, blacks and white offenders respectively. Among those sentenced to prison, the average sentence lasted 102 months for African Americans, 74 months for Hispanics and 59 months for whites. In addition, among the offenders convicted for similar offenses, for instance drug related offenses the length of sentences still varied in favor of whites. Specifically, for offenders convicted with drug related offenses, the mean sentence length was 82 months and 52 months for African Americans and whites respectively. For the offenses with a prescribed minimum sentence, the mean sentences were 136 months and 82 months for African Americans and whites respectively. Further, reports indicate that African American offenders who were convicted of violent crimes in the year 2002 were sentenced to prison. This figure is significantly more than just 47 percent of whites convicted for the same crimes in the same period. In addition, 41 percent of offenders convicted of drug related offenses were African Americans while only 32 percent were white. In Miami, Chicago and Kansas African Americans and Hispanic offenders faced a greater odd of incarceration compared to white offenders. Specifically, 66 percent of African Americans, 59 percent of Hispanics and 51 percent of whites were incarcerated in Chicago, 51 percent of African Americans, 40 percent of Hispanics and 35 percent of whites were incarcerated in Miami while 46 percent of African Americans, 40 percent of Hispanics and 36 percent of whites were incarcerated in Kansas (Spohn 2004). Despite such evidence, other findings indicate especially with regard to direct discrimination shows that the presence of direct discrimination in sentencing is not uniform and as extensive. Specifically, a number of state level studies indicated no evidence of direct racial discrimination in sentencing. In addition, other similar studies that found indications of direct discrimination concluded that the level of discrimination was relatively very modest. The studies reported that the racial discrimination increased the likelihood of a minority being sentenced by just few- at times negligible, percentage points. Further, it is worth noting that the statistics indicating racial discrimination are sourced from just a few or relatively small samples of jurisdictions and may as such not necessarily be generalizable. Discrimination against minorities in sentencing, in the United States, is neither invariable nor universal. In addition, it is not as overt as was the case 30 years ago. However, despite the improvements made, minority discrimination in sentencing is more insidious. The prevalence and severity are masked by the treatment of ethnic groups as a unitary body (Feldmeyer& Ulmer, 2011). Explanations for the discrepancies in sentencing There are several explanations that have been presented as the probable causes of the discrepancies based on race in sentencing. These explanations span from malice on the part of the judges issuing sentences to the fact that minorities are more likely to commit crimes due to factors such as economic conditions, level of education among others. This paper will explore four of the most dominant explanations of the causes of discrepancies in sentencing. The explanations are not justifications for the discrepancies,but an attempt at trying to understand whether the discrepancies are as a result of malice or purely circumstances. Minorities commit more serious crimes Some studies have sought to explain the discrepancies as arising from the fact that minorities- specifically African Americans and Hispanics commit more serious crimes than their white counterparts. In addition, African Americans and Hispanic offenders are more likely to have prior criminal records compared to white offenders. These two factors are very relevant legally and should be taken into consideration when analyzing sentencing outcomes. This is because offenders who commit more serious crimes use weapons to commit crimes and or injure a victim, are likely to receive more harsh crimes. This is also true for offenders who have prior criminal records. The severity of the sentences imposed on minorities may be as a result of the two factors and not necessarily as a result of racial prejudice or bias on the part of the judge. It is legally acceptable and even recommended that the severity of a crime or existence of prior criminal records be a source of more harsh sentences. Economic discrimination Discrepancies in the rates and severity of sentencing between minorities and whites may be as a result of economic discrimination. Reiman and Lieghton 2010, for instance, observe that the whole criminal justice system is biased against the poor and that there exist a general refusal to accept and seek to remedy the vice. In most cases, poor offenders are not likely to afford or obtain a good private attorney or secure release before the trial. In addition, minority offenders are likely to be unemployed (Reiman & Leighton, 2010). All these factors relate positively with the severity of sentencing. Defendants who obtain a good private attorney or those who are able to secure release beforetrial are more likely to receive lenient sentences compared to the defendants who are represented by public defenders and remain in custody before the trial. In addition, defendants who are unemployed are more likely to receive more harsh punishment than those who are employed. The fact those minorities on average poorer than whites and that minorities offender are in most instances poor and unemployed, economic discrimination is a very likely factor contributing to the discrepancies in the severity and rates of sentencing between minorities and whites (Rehavi& Starr, 2012). Another way how economic discrimination explains the discrepancies in the rates and severity of sentencing between minorities and whites is through the criminalization of most of the vices perpetrated by the poor and the decriminalization of the vices that are mostly perpetrated by the rich. For instance, Reiman and Lieghton 2010 identified vices such as deadly pollution, prescription of unsafe surgery and drugs among such other vices that are very harmful to people yet are treated as ethical problems (Reiman & Leighton, 2010). The justice systems do not adequately protect against such harmful acts by the well-off. This results in a system where most of the people sent to prison through the existing criminal justice system being mostly the poor. Currently, most of the poor comes from the minority groups especially African Americans and Hispanics. This, therefore,may explain the huge number of people in prisons being from the minority compared with the whites. This is more evident if viewed from a rich or poor perspective rather than from a position of ethnicity. However, based on the fact that a huge population of the minority falls in the poor bracket and that an equal number of whites fall within the rich bracket, the explanation will hold in explaining the reasons for more minority sentencing compared to whites. Direct racial discrimination Direct racial discrimination on the part of the judges is another possible explanation for the discrepancies in rates and severity of sentencing. Direct racial discrimination refers occurs when a judge takes the race or the ethnicity of the offender while determining the sentence or the period of the sentence. It may also occur when a prosecutor considers an offenders race or ethnicity while deciding on whether to make a plea bargain or in making sentence recommendations to the judge. Numerous studies have reported on prejudice judges and prosecutors who treat minority offenders comparatively more harsh than the white offenders. In addition, there are criminal justice officers- most of who are white, have inherent stereotypes against African American and Hispanic offenders. Such officials view minority offenders- in this case African American and Hispanic, more violent and dangerous than white offenders. This makes such officials treat minority offenders differently and are likely to prescribe or hand them more harsh sentences because they view the offenders as less amenable to the legally recognized rehabilitation process (Feldmeyer & Ulmer, 2011). Discrepancies in sentencing is a reflection of both equal treatment and discrimination This implies that the sentencing discrepancies may arise as a result of both discrimination against the minority and equal treatment. This is a matrix explanation that takes into considerations different types of crimes. For instance, numerous studies posit that minorities are treated equally with whites when the crime committed is for instance forgery. On the other hand, in the case of a crime such as sexual assault, minorities are awarded more harsh sentences compared to white offenders who commit a similar crime. This means that sentencing differences are a reflection of more than just discrimination. Rather, it is a factor of the racial composition of the offender and the victim, type of jurisdiction, age and gender of the offender among other similar factors. This would imply that the type of discrimination evident in sentencing is contextual discrimination (Walker, Spohn & DeLone, 2011). Analysis It is undisputable that more people from the minority communities are in prison than the people from the white community. The point of contention, however, is whether the discrepancies are a result of direct discrimination against the minority or are purely circumstantial. The point whether the discrepancy is a result of racial discrimination orcircumstantial differences affecting the races is what is disputable. Historical perspective In the early 20th century, racial discrimination was very evident,and racial disparities in sentencing were a result of obvious racial discrimination. Early literature, on the topic,expressly reported this vice. For instance, one of the fore studies on sentencing discrepancies claimed ‘equality before the law is a social fiction’ (Gorton & Boies, 2009). Such literature is, however, flawed with regard to the methodology of arriving at the conclusion. For instance, the studies used simple statistical techniques- at times just cumulating the numbers of each group that is imprisoned, and did not control other variables influencing sentencing adequately. A study conducted by the national research council’s panel on sentencing research in 1983 reported that the kind of widespread and systematic discrimination reported by prior studies was a misrepresentation of the real facts. The study acknowledged that there were indeed pockets of discriminatory incidences among some judges especially in specific kinds of crime and setting (Gorton & Boies, 2009). Marjorie Zatz reviewed research studies spanning between 1930 and mid 1980s and concluded that race was a determinant of a sentence and or the severity thereof. She also concurred with the national research council’s panel on sentencing research in 1983 that suggested race was not a major determinant of sentencing. Most of the other studies conducted recently concur with Zatz findings that race is not the major determinant of the sentencing outcome but that ethnicity is among the factors that determine sentencing outcome. The relevance of Race in sentencing Factors such as economic conditions, level of education, past criminal records among other similar factors are important in the sentencing process. Some, for instance, past criminal records and seriousness of the crime are even legally relevant. As such, as long as there exist these differences across race, there will be discrepancies in the number of minorities and whites charged with similar crimes. However, the race related factors should not at all serve as justifications for the discrepancies but rather should view as indications of the root cause of the problems and solutions aimed at curing the situation should be modeled around these issues (Delgado &Stefancic, 2012). A middle ground that recognizes but does not let the differences between minorities and whites be a determinant of sentencing outcome should be identified. For instance, past crime records and seriousness of a crime need not necessarily influence the outcome of the sentencing. Some scholars view seriousness of a crime, and past criminal records are indeed race linked variables. This is true if, for instance, the sentencing scheme prescribe harshest punishments for specific offences that are likely to be committed by the minority. For instance, prescribing harshest sentences for offenses such as robbery and drug offenses and at the same time prescribing lighter punishments for crimes that are likely to be committed by the well off- in this case whites, is not in any way race neutral. The criminal justice system, today, is modeled in such a way. Recommendations Review of the sentencing guidelines The objective of the sentencing guidelines was set by the sentencing reforms act of 1984 to reduce the disparity in sentencing among similar offenders. The act describes its purpose as “avoiding unwarranted disparities among defendants with similar records who have been found guilty ofsimilar criminal conduct” (Weigel, 1988). The act through the sentencing guidelines was set to limit the sentencing range and the judicial departures from the prescribed range of punishment. However, the current sentencing guidelines have aggravated the problem of racial disparities in sentencing. The guidelines prohibit considerations of offenders’especially circumstances and as such exacerbate the ethical dilemma. In making rulings and determining the severity of sentences, judges are prohibited from considering factors such as employment status, marital status, family situations or even education (Fischman& Schanzenbach, 2012). These guidelines may have been put in place specifically to avoid lean sentences to the affluent, and more harsh sentences for the poorer. The guidelines have, however,done more harm than good. It is very inconveniencing especially to minority groups who come through dismal life. The guidelines shifted the focus of sentencing from the offender to the offense. This is in essence very positive with regard to providing justice equally among all people. However, if the problem of discrepancies in the sentencing process is to be addressed, different groups of offenders should be viewed differently not based on the race or ethnicity butpersonal circumstances and the effects ofpunishment to both the offender and the offenders’ family. A huge number of youth committing crime among the African American and Hispanic communities have a parent or a close relative incarcerated. The youth might have committed the crime due to lack of parenting. Continued sentencing would deprive such communities of parent figures and may, therefore, result in more incidences of crime a factor that would defeat the essence of the criminal justice system (Braswell, Fuller &Lozoff, 2001). There should be steps towards allowing judges to focus on personal circumstances. For instance, Michael Tonry suggested that sentencing guidelines should allow judges to mitigate a sentence for an offender from an under privileged/ deprived inner city youth- who typically face more temptations to commit crimes than their counterparts from affluent neighborhoods (Tonry, 1995). In addition, it should allow mitigation in the case of an offender who rises from a deprived background and has achieved success. Increasing judicial discretion The judicial discretion of individual judges plays a huge role in the process of sentencing. Judicial discretion of individual judges helps in preventing unwarranted disparity in sentencing even for similar offenses that it creates the disparities. Alexander Bunin- a defense prosecutor who has over twenty three years’ experience in practice in federal courts in the states of Texas, New York and Vermont, believed that sentencing disparities can be greatly be reduced by increasing judicial discretion. Bunin appeared before more than 18 different district judges in more than 12 districts. He describes that most of the judges’ decisions were modeled around the sentencing guidelines. He also appeared before the late federal judge Hon. Joe Fisher who spent more than 35 years as the only federal judge for eastern Texas. Hon. Joe fisher practiced for over 38 years without using the sentencing guidelines. Despite not using sentencing guidelines, Hon. Joe Fisher sentences did not show much disparity as the sentences by the other judges (Bunin, 2009). Further, most judges around the United States have expressed dissatisfaction with sentencing guidelines. Most of the judges express satisfaction with the help of the guidelines but also add that thelack of judicial discretion in some matters leads to harsh sentences at times. For instance, most drug crimes attract mandatory minimum punishments which were at times not proportionate to the crime under some circumstances. Advisory sentencing guidelines that are in use, currently, should be used to increase the discretion of individual judges. It is,however, worth noting that unwarranted disparity may arise from the increase in judicial discretion. However, judicial discretion for individual judges is more likely to reduce than increase the disparities. A good example of how individual discretion can help reduce but not increase sentencing disparities is the current discretion given to prosecutors in applying charges and setting plea bargain. The discretion was viewed as a source of disparities in charges preferred; however, a lot of prosecutors have used the discretion to avoid unwarranted disparities. Judges should also be given such discretion especially so as to check the discretion that has been given to the prosecutors (Neubauer &Fradella, 2010). Judges should impose sentences that are sufficient, yet not greater than what is necessary. Each sentence should show evidence of justice in the punishment, show respect for the rule of law, act as a deterrent to potential offenders and protect the public and the rehabilitation process (Albanese, 2012). To achieve all this, judges have to do more than just implement the sentencing guidelines. This is based on the fact that each offence and the circumstances surrounding the offence and offenderarevery unique. Judges should consider the applicable guideline range, the circumstances of the offense and the offender. The only step that has been made to increase individual judge’s discretion is the change of the sentencing guidelines to be advisory. However, the change has done little to change disparities in judgment especially because the sentencing guidelines still forms the benchmark for sentencing. The best way to balance all the sentencing objective is expanding the discretion of individual judges to exercise judgment even above or below the scope provided by the sentencing guidelines. Checking Prosecutors’ power to prefer charges Prosecutors are also hugely responsible for the disparities in the sentencing decision between minorities and whites. Prosecutors are responsible for preferring charges against offenders. In most cases, the offenses preferred against an offender are different between minority offenders and white offenders. This is mostly due to prejudices against the minority for reasons similar to why some judges have prejudices against the defendants- unemployment, economic status among others (Barkow, 2011). The charges preferred and the sentencing prescription recommended by prosecutors to judges has a direct impact on the kinds of sentences given out by the judges. Alexander Bunin argued that either prosecutors should be guided by prescribed charges recommendation guidelines or that judges should be given a similar discretion as prosecutors in order for them to take charge in ensuring that they hand sentences that are fair and just and meet the objectives of sentencing (Spohn, & Tellis, 2013). Prosecutor, therefore, have a direct contribution in the disparities in sentencing among minorities and whites. Measures seeking to curb the discrepancies should include coming up with ways to check the discretion of the prosecutors. Under the current conditions, judges, prosecutors and defense lawyers can circumvent the mandatory guidelines with the aim of achieving a more just sentence (Braswell, Fuller &Lozoff, 2001). This kind of circumvention is not entrenched in law a factor that would have a positive impact on eliminating or reducing the disparities. However, this should be done restrictively as the same could be have negative consequences on reducing the disparities (Scherer, 2011). However, I believe that such an action would have do more good than harm especially because there are more conscious judges than not. Conclusion Sentencing discrepancies between minorities and whites who are charged with similar crimes is very real in the criminal justice system today. Statistics shows clear disparities in the number of people from the minority groups- for instance African Americans and Hispanics, are considerably higher than the number of white counterparts in US prisons. A vast array of reports has reported different causes for the discrepancies. Some of the reasons reported as the causes for the disparities include; that minorities commit more serious crimes and are more likely to have prior criminal records that their white counterparts both of which are legally relevant variables, economic discrimination- minorities are on average poorer than whites and therefore a minority offender is more likely to be poor. Economic discrimination leads to inability to hire private advocates and secure release before trial, factors that influence sentencing. Further, reports have indicated the disparity as being a result of judge’s bias and prejudice against the minority. A number of judges view minorities as more aggressive and less amenable to the rehabilitation process. Such judges are more likely to hand more harsh sentences to minorities than they do to the whites. Finally, other reports suggest that the disparity arise from a combination of both direct racial discrimination and circumstances. Whatever the cause, disparities in sentencing are still real today although in a smaller scale than they were years ago. Today, racial discrimination in sentencing is still evident although mildly and far between. The causes advanced for the discrepancies are in no way justifications for the vices. Deliberate measures should be put in place to ensure that the disparities are eliminated. In my opinion, the measures should include judges making sentences based on more than the prescriptions made by the sentencing guidelines. Specifically, judges should be given more judicial discretion to make the sentences. This would help them approach each sentencing uniquely and in turn would help them balance between all the objectives of sentencing. In addition, the sentencing guidelines should be reviewed and relaxed in such a way that they do not form the fundamental basis for sentencing. They should be used only to guide the judges in making sentences. References Top of Form Braswell, M., Fuller, J. R., &Lozoff, B. (2001). Corrections, peacemaking, and restorative justice: Transforming individuals and institutions. Cincinnati, OH: Anderson Pub. Bottom of Form Albanese, J. S. (2012). Professional ethics in criminal justice: Being ethical when no one is looking. Boston: Prentice Hall. Reiman, J. H., & Leighton, P. (2010). The rich get richerand the poor get prison: Ideology, class, and criminal justice. Boston, Mass: Allyn & Bacon. Delgado, R., &Stefancic, J. (2012). Critical race theory: An introduction. NYU Press. Feldmeyer, B., & Ulmer, J. T. (2011).Racial/ethnic threat and federal sentencing. Journal of Research in Crime and Delinquency, 48(2), 238-270. Scherer, N. (2011). Diversifying the federal bench: Is universal legitimacy for the US justice system possible. Nw. UL Rev., 105, 587. Neubauer, D., &Fradella, H. (2010). Americas courts and the criminal justice system. Cengage Learning. Hurwitz, J., & Peffley, M. (2010). And justice for some: Race, crime, and punishment in the US criminal justice system. Canadian Journal of Political Science, 43(02), 457-479. Spohn, C., &Tellis, K. (2013). Policing and prosecuting sexual assault: Inside the criminal justice system. Lynne Rienner Publishers. Mustard, D. B. (2001). Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the US Federal Courts*. Journal of Law and Economics, 44(1), 285-314. Tonry M. (1995). Malign Neglect: Race, Crime and Punishment in America. Oxford University press. Spohn C. (2004). Charging and sentencing Decisions in three U.S district courts: A test ofassumption of uniformity in the federal sentencing process. Bunin, A. (2009). Reducing Sentencing Disparity by Increasing Judicial Discretion. Gorton, J., & Boies, J. L. (2009). Sentencing guidelines and racial disparity across time: Pennsylvania prison sentences in 1977, 1983, 1992, and 1993.Social Science Quarterly, 80(1), 37-54. Spohn, C., Gruhl, J., & Welch, S. (2001). Effect of Race on Sentencing: A Re-Examination of an Unsettled Question, The. Law & Socy Rev., 16, 71. Fischman, J. B., &Schanzenbach, M. M. (2012). Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums. Journal of Empirical Legal Studies, 9(4), 729-764. Walker, S., Spohn, C., &DeLone, M. (2011). The color of justice: Race, ethnicity, and crime in America. Cengage Learning. Weigel, S. A. (1988). Sentencing Reform Act of 1984: A Practical Appraisal, The. UCLA L. Rev., 36, 83. Rehavi, M. M., & Starr, S. B. (2012).Racial disparity in federal criminal charging and its sentencing consequences. U of Michigan Law & Econ, Empirical Legal Studies Center Paper, (12-002). Feldmeyer, B., & Ulmer, J. T. (2011). Racial/ethnic threat and federal sentencing. Journal of Research in Crime and Delinquency, 48(2), 238-270. Barkow, R. E. (2011). Sentencing Guidelines at the Crossroads of Politics and Expertise. U. Pa. L. Rev., 160, 1599. 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