Disparities have certain effects on certain groups, especially the blacks, who are given variable treatment in the justice system. It is said that racial disparity in a criminal justice system is exists when the percentage of a racial group controlling the system is bigger than the percentage of the ethnic or racial group in the total population. There are different ways of differentiating between legitimate and illegitimate racial disparity. This distinguishes the latter as resulting from the dissimilarity in the way people are treated in similar situations but of different races or ethnic groups. (The Sentencing Project, 2000, p.
Consensus in the two bodies of research states that the causes of the disparity are seen at every stage of the judicial process. This is from biases in policing, prosecution, and sentencing (The Sentencing Project, 2000, p. 2, Weich and Angulo, n.d. , 196).Racial disparity in the system can happen in various ways. For instance, the “driving while black” phenomenon is when African Americans are randomly stopped during search operations by police. This happens even though the statistics is just for a small fraction of all drivers and traffic violators. Another is that blacks charged with felonies will be detained and kept in detention for an indeterminate time, compared to whites, who may enjoy some privileges.
Another is the fact that 46 percent of prison inmates are African Americans, even though they only make up 12 percent of the American population. Blacks males also have a 30 percent chance of being incarcerated in their lifetime. This is a big difference because there is a 16 percent for Hispanic males and four percent for white males. An example is that of the plight of African American youth who represent 15 percent of the total number of people in their age group. This group account for 26 percent of all juvenile arrests, where there are 31 percent referrals to the juvenile courts, 46 percent of adult court waivers, and 58 percent of all juveniles sent to prison (The Sentencing Project, 2000, p. 3).
Sentencing notes that race remains an important presence in the sentencing process of the American system, with the issue of race not being brought up as explicitly as it had been in the mid 1950s in the American South. It is rather tied up “surreptitiously” in connection with other factors that are only implicitly linked to race (The Sentencing Project, 2005, 1). The rest of the paper looks at the causes of racial disparity in general, and how disparity is gleaned in itself. The paper then focuses on the nature, causes, and issues tied to racial disparity in sentencing in particular.
II. Causes of Racial Disparity in the Criminal Justice SystemStudies show that the causes of racial disparity in the criminal justice system is due to higher crime rates, inequitable access to resources, the legislature, and to overt bias from the society at large (The Sentencing Project, 2000, pp. 5-9). With regard to higher crime rates as a cause, the study basically says that the rise in a crime lead to disparities in the way certain races are treated in the justice system.
The study notes several research findings, including one by Alfred Blumstein, which concludes that 76 percent of those cases of higher black imprisonment can be traced to an increase in the number of arrests for serious crimes, with the other 24 percent explainable by such other factors as racial bias and criminal histories. In other words, the greater rates of incarceration for African Americans are tied to the increased rates of arrests and incarceration in general. (The Sentencing Project, 2000, p. 6). Inequitable access to resources puts certain biases on poor people when it comes to sentencing options.
One, bail and pre-release requirements of electronic monitoring using an electronic device and the availability of a phone at home disqualifies people who have no resources to afford both. Two, middle-class defendants have greater access to resources that allow them to get professional medical and psychological care necessary to avoid or minimize jail terms. Third, people with means are able to avoid detention prior to sentencing and are thus less harassed and less criminal looking during sentencing. The link is that majority of those who are poor and within the power of the criminal justice system are African Americans (The Sentencing Project, 2000, 8).
With regard to the role of the legislature, it is said that many of the laws passed to curb crime have foreseen and unforeseen consequences that are biased against minorities. One example is that because the laws put greater emphasis on the prosecution of crack cases over cocaine, minorities who belong to the poor who are the prime markets of crack become the subject of increased arrests and prosecution. This would not have been the case if cocaine was made the emphasis of the drug war, because the market for cocaine is the middle classes (The Sentencing Project, 2000, p. 9).In terms of overt bias, it is said that racism still dominates inter-class interactions in the United States and that in turn reflects in overt bias in the justice system, the system is a mirror of American society in general.
Bias in the policing system shows in racial profiling and the respect or lack of respect shown to certain groups of people based on race. In the courts, overt bias shows in the way certain defendants are addressed so that the effect is that of treating minority defendants as second-class citizens (The Sentencing Project, 2000, p. 10).III. A Closer Look at Racial Disparity in SentencingIn theory, racial disparity in sentencing is supposed to have been eliminated with the passage of the Sentencing Reform Act of 1984, said to be designed “to eliminate sentencing disparities and state explicitly that race, gender, ethnicity, and income should not affect the sentence length” (Mustard, 2001, pp.
1-2). In practice, however, we have already noted that disparities in sentencing are a fact, caused by many overt and subtle factors related to race. The Sentencing Project concludes, in a study that rigorously used credible evidence that “racial bias continues to pervade the US criminal justice sentencing system”, and that race has historically been a major determinant of sentencing outcomes (The Sentencing Project, 2005, p. 17).
In particular, a study has found out that blacks, males, and offenders who have low educational attainments and low incomes are generally sentenced to longer jail terms than most. Also, the same study found that blacks and males are less likely to not be sentenced to jail terms when the option for no jail terms is present. Moreover, blacks and males are also less likely to have their prison terms reduced, and are more likely to have their jail terms adjusted upward by the courts (Mustard, 2001, p. 1). Other studies corroborate these findings.
Yaeger and Schanzenbach, for instance, studying data collected by the United States Sentencing Commission on 51,805 white-collar offenses from 1992-1998, concluded that “significant racial disparities persist in the length of the prison term even when only white-collar offenses are examined”, and that “education, the number of dependents, income, and age affect the length of the prison sentence”. The study also notes that whites are more frequently fined than black and Hispanics, in place of prison terms, suggesting that people’s capacity to pay, which is a function of race, also influences who goes to jail or not (Yaeger and Schanzenbach, n.d., p.
In New York, a state study between 1990 and 1992 found out that one-third of minorities sentenced to prison terms would have received lighter sentences had they been whites. Another study found that blacks in the US in general are sentenced to prison 52 percent of the time, compared to 34 percent for whites. Moreover, not only are blacks more frequently put to prison than whites, they also serve longer jail terms than whites in general (Welch and Angulo, n.d.
, p.198). The Sentencing Project offers more proof, based on its findings, on the prevalence of racial disparities in sentencing. In a recent study, the group found that young, black and Latino males are harshly sentenced compared to other defendants, especially when they are unemployed. They also found out that black and Latino defendants are disadvantaged when it comes to factors related to the legal process, such as with regard to trial penalties, sentence reductions due to substantial assistance, criminal history, pretrial detention, and type of attorney.
They discovered, moreover, that blacks who harm whites receive harsher sentences than blacks who harm blacks and whites who harm whites and non-whites. Also, blacks and Latino defendants are more likely to be sentenced harshly compared to whites. Finally, they found that in the majority of the cases they examined, defendants are more likely to receive the death sentence for crimes against white victims and that minority defendants are more likely to be sentenced to death than whites (The Sentencing Project, 2005, p.2).
The above study looked for evidence of racial disparities in sentencing in the areas of direct racial discrimination, the interaction of race/ethnicity with other offender characteristics, interaction and indirect effects of race/ethnicity and process-related factors, the interaction of race/ethnicity and type of crime, and capital punishment (The Sentencing Project, 2005, p. 3). Proposed SolutionsWelch and Angulo have several recommendations to address the issue of racial disparities in the US criminal justice system in general, and some of them touch on the issue of sentencing. One, they argue for the building of accountability into the exercise of discretion on the part of the police and the prosecutors. Two, they recommend an increase in the racial diversity of personnel involved in law enforcement.
Three, they propose that the method of data collection on criminal justice data related to racial disparities be improved. Four, they propose that the operation of the death penalty be suspended. Five, they recommend that the mandatory minimum sentencing laws be repealed. Six, they want to see sentencing guideline systems reformed. Seven, they recommend that the transfer of juveniles into the adult justice system be repealed or rejected. Eight, they argue for the improvement of the quality of the defense counsel in criminal cases for indigents and minorities.
Nine, they recommend that felony disenfranchisement laws and “other mandatory collateral consequences of criminal convictions” be repealed. Ten, they recommend that a balance be restored with regard to the National Drug Control Strategy, to give equal focus to rehabilitation and not just to prosecution and punishment (Welch and Angulo, n.d., pp. 208-211).
Racial disparity in sentencing is a fact. It reflects racial disparities in the other aspects of the criminal justice system in the US, as well as the racial disparities in the society in general. Because it affects many aspects of the system, solutions to the problem must be found not only during the sentencing process, but also in other aspects of the system itself, notably in the area of policing, prosecution, and laws legislation.