Sentencing

Black Men Receive 20 Percent Longer Sentences Than White Men for the Same Crimes Says New Fed Report

Celeste Fremon
Written by Celeste Fremon

A newly released report by the United States Sentencing Commission found that black male offenders received sentences that were significantly longer than “similarly situated” white male offenders when tried in federal court, even when their crimes were absolutely the same.

On November 14, the nation’s Sentencing Commission (USSC) released its new publication, Demographic Differences in Sentencing. Among the key findings of the 43-page report, the commission discovered that sentences received by black male offenders were, on average, 19.1 percent longer than “similarly situated white male offenders.”

This newest report is the third such examination of sentencing discrepancies, made by the USSC, which is, by the way, a bipartisan, independent agency that was created by Congress in 1984 to “reduce sentencing disparities and promote transparency and proportionality in sentencing.” (Commissioners are appointed by the President and confirmed by the U.S. Senate.)

In 2010, and in 2012, the commission published very similar reports that examined how the length of sentences imposed on federal offenders might be affected by the “demographic characteristics of those offenders,” once the BSSC researchers had controlled for such variables as type of offense, criminal history, and weapons possession.

In each case, federal researchers found that black men got sentences that were approximately 20 percent higher than those of white men for the same crime—even once all the other main variables were factored in.


Exploring the effects of 2 SCOTUS rulings

The purpose of the 2010 report, and a subsequent report in 2012, was to examine the impact of the U.S. Supreme Court’s 2005 ruling in United States v. Booker, which determined that the federal sentencing guidelines should now be viewed as advisory, rather than hard and fast limitations, thus permitting federal judges to have the discretion to go above or below the boundaries of the guidelines.

Then two years later, in 2007, SCOTUS further clarified what federal judges could do vis-a-vis the guidelines with Gall v. United States, which held that an appellate court must not upend a fed judge’s “reasoned and reasonable sentencing decision” without a very good cause.

In its 2010 analysis, the Sentencing Commission found that, indeed, some demographic characteristics made a significant difference in sentencing outcomes. Most dramatically, post Booker and Gall, black male offenders already received longer sentences than white offenders, and the gap had continued to widen substantially after Booker.

In 2012, the commission updated its analysis for the period between the 2010 report and that of a 2012 report, and continued to find that black men continued to receive longer sentences than similarly their similarly situated white male counterparts.

The report released last week, covers the four years from 2012 to 2016, controlling for all the same variable of previous two reports. But this time, the authors also controlled for any past violence in the offender’s history, which they felt was an important missing element.

Even with that additional variable accounted for, researchers found that the sentences for black men still hovered around 20 percent higher than those of white men, past violence or no past violence.


Judicial discretion

In another key finding, the reported noted that what they described as “non-government sponsored departures and variances” from the sentencing guidelines—in other words, when judicial discretion was exercised—this appeared to contribute “significantly” to the difference in sentence length between black male offenders and white male offenders.

The report also found that black male offenders were 21.2 percent less likely than white male offenders to be the beneficiary of judicial discretion that dropped them below the guidelines.

Furthermore, when black men did receive a sentence that went below the federal guidelines, their sentences were still 16.8 percent longer than white male offenders who were the recipients of a lower-than-guidelines sentence. In other words, when judges decided to give black men a break, statistically they didn’t give them as much of a break as they did white men.

In contrast, when judges didn’t stray from the applicable federal sentencing guideline range, there was still a 7.9 percent difference in sentence length between black men and white men.

The researchers noted that, contrary to some expectations, violence in an offender’s criminal history did not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences that were an average of 20.4 percent longer than similarly situated white male offenders, even after accounting for violence in an offender’s past. (This number, however, only pertained to fiscal year 2016, which the report’s authors said was the only year for which such data was available.) This figure is almost the same as the 20.7 percent difference without accounting for past violence. “Thus,” they wrote, “violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.”

The report’s other main finding was the fact that, in all three reports, female offenders of all races received shorter sentences than white male offenders.


The effects of judges, prosecutors and defense attorneys

At first glance, the numbers suggest that, once judicial discretion is in play, it opens the door to judicial bias, which became the primary culprit in producing the race-based difference in sentencing.

Yet Marc Mauer, CEO of the Sentencing Project, disagreed with the analysis when he talked to the Washington Post about the new report.

“What we see is that the charging decisions of prosecutors are key,” he told the Post’s Christopher Ingraham. “Whether done consciously or not, prosecutors are more likely to charge African Americans” with a “…charge carrying a mandatory minimum sentence to ensure that a certain amount of prison time is imposed, with no possible override by the judge.”

In a similar vein, Douglass Berman, the Robert J. Watkins/Procter & Gamble Professor of Law, and creator of the widely cited, Sentencing Law & Policy, opined when he wrote about the report that, while the commissions findings were “really interesting, they were “not especially surprising.” Then, in a spin on Mauer’s thoughts, Berman said that he feared that “differences in the resources and abilities of defense counsel” may create or enhance disparities in federal sentencing outcomes “in ways that can not be easily measured or remedied.”

Berman also remarked—and WitnessLA agrees—that it will be instructive to see how both the US Department of Justice “and members of Congress pushing for federal sentencing reform” might respond to the USSC’s disquieting report.


Photo courtesy of the Bureau of Prisons

18 Comments

  • This has been and will continue to be the nature of our criminal justice system until you take out the discretionary sentencing allowed by judges. Look at the case of the Stanford University rapist who never served a day in prison. The governor recently got rid of mandatory sentencing enhancements for crimes that involved firearms and put the discretion in the hands of judges. Not the direction to go if you want fairness and consistency across the board.

    A step in the direction would be to make sentencing literally “black and white”, no pun intended. If your found guilty of committing the crime of murder you get “X”…not “-X” or “X+”…just flat out “X”.

    Judges have way too much sentencing latitude and there is no way to get rid of their implicit biases. Let a computer program decide what sentence fits the crime based on the facts…I’m sure one can be programmed to perform such a simple task.

  • Wow, so the federal justice system, those great arbiters of “civil rights violations”, the system that boasts justices like Percy Anderson and Terry “the mad”Hatter are basically the embodiment of the modern KKK. Who knew?

  • Once again the Liberal System working against blacks. When will they ever wake up. This is a travesty and yet blacks will still blame the conservatives. Unbelievable.

    I agree with Conspiracy, take the discretion out of it. Equal across the board no matter what economic or racial demographic the situation involves.

  • CF, surprised that Conspiracy wants the book (literally) thrown at whites as well? Or do you disagree with the notion of mandatory sentencing? Cat got your tongue?

  • Just Say’n, thank you for the invitation to share my two cents. No, I am not surprised that Conspiracy would throw the book at a little white rapist, especially given the victim was a little white girl. What was more important in that case, I think, was gender, and not just race. This is a “good” white boy “who had too much too drink,” no sense in ruining his life. I doubt Conspiracy would be as “outraged” had the victim been a black girl.

    And, what you are missing is that judges are not the only problem. Perhaps they are the least of the problem. I am more concerned about an overwhelmingly white prosecutor bar, as well as majority white law enforcement. They have a lot more discretion in who they arrest, how they charge, and what plea to accept. As you know, very few cases go to trial and in most pleas the judge will follow the government’s recommendation. You are more likely to throw the book at a brother, that a young white boy. Between your fellow LOE’s biased catch-and-release program and the prosecutor bar’s bias against the black man, a brother stands no chance.

    Let us look at Consiparcay’s brilliant solution, “If your found guilty of committing the crime of murder you get “X”…not “-X” or “X+”…just flat out “X”.” Who decides whether you get charged with murder, or manslaughter, first or second degree, with special circumstances, how about an enhancement. That is between you and the prosecutor. Most cases will never make it to trial so between the cops and the prosecutors, that is were most people are F’d. And, you are more likely to get F’d if you’re black or brown, than if you are little Brock Turner.

    Again, thank you for the invitation to comment. For a while there I was beginning to think you guys did not want to hear from me.

  • CF is so jaded against the “man” and the “system” he evidently does not think any person of color can commit a crime, be held accountable for their actions or get fair treatment under the law. He has all the answers, and knows all the tricks those pesky cops and lawyers will use to convict those innocent “negroes”. I guess all black folks should get a pass and be allowed to violate any law they wish because of past (or present) injustices. I guess that’s hoe Lavar Ball feels and why he downplays his kid breaking the law. His kids at least have a 50/50 chance of being treated fairly by the system I would think…since they’re bi-racial.

    The racist black cop in Baltimore shot and killed by a black men. The racist white cop in Pennsylvania was shot by a black man. I guess by your reasoning, the cops had it coming and when the killers are caught, they won’t get fair treatment under the law.

  • CF, I’m always interested in your point of view. It is the fact that the majority of cops, prosecutors, and judges are white and from your point of view, they have a built-in bias. So how do we go about getting around the fact that blacks are a minority in this country and can’t get a fair shake by people of other colors?

    Do we set up a system wherein blacks are adjudicated by other blacks because of the built-in bias. Maybe set up something up like Sharia Law? Have a separate judicial system for blacks? Does it start with only special black cops being able to arrest black suspects and taken before black prosecutors and black judges? How would such a system work? In a community of mixed races, how else are you going to assure that blacks don’t get the short end of the stick by non-blacks?

    I don’t think you can ever be convinced that whites can ever adjudicate cases of blacks equally and statistics frequently supplied by WitLA often seem to support your position. Or do you think that bias can be eliminated? What would it take to convince you that it has??? How could it be done????

    Let’s leave the rhetoric to others and have a reasonable discussion.

  • Gentlemen, I’m beginning to think I may be wasting my time trying to enlighten you. First, for ownership, my apologies for confusing you or for not being more clear. By “bar” I do not mean a bar association, such as the State Bar or the Los Angeles County Bar Association. I meant it with lower case “b,” as in the group of prosecutors as an institution. So, to answer your question, yes, prosecutors are made up of people like you and me and are biased, and some racist.

    Conspiracy, no, you are incorrect. Of course black people commit crimes, just like whites. Of course, they do drugs, just like whites. Of course they rob and steal, just like white people. All I am saying is that, ALL THINGS EQUAL, they are treated much more harshly than whites. And, I am not even black. They, of all groups, yes including brown people, Asians, natives, etc, are treated worse in almost all spheres of society. That is all I am saying. That, and that you and your fellow LOE are part of the problem.

    And, I have no idea why Mr. Ball feels the way he does about his son. If it were my son, I do not think I would whup him, as you probably think he should be, but I would raise some hell with him and want to know what the F@#% he was doing stealing sunglasses, in a foreign country, at that. I do not, however, remember you saying anything about Otto Warmbeir or Wambeir’s father. That kid was stealing posters in North Korea. And, why is it that when some black kid does something stupid, as they do and as white kids do, its a serious crime and representative of the entire race, but when a white kids does it, its just something stupid? I never read about you talking about the out of wedlock births in the white community. The majority of out-of-wedlock births are white, but its never been a problem. Or, drug use in the white community. Hell, meth and now opiates are the white man’s crack, but, unlike the response with crack in the 1980s, its now a health issue and secondarily a criminal justice issue. I would have more respect for you and the rest of your cohorts if you just admit you are racist. As the good book says, the truth shall set you free.

    Finally, Conspiracy, now you are talking nonsense. Even though the kid may be bi-racial, and half white, in your eyes and in society’s eye, he is black. Please do not try to tell me that you ever considered Obama white. His mother had sexual intercourse with a black man (I’m sure that bothers you). He was black in your eyes. This is still a racist country and black people still catch hell.

  • Hey cf I see you’re using the old “white people are committing crimes too” excuse. Of course you’re leaving out the fact that a Black criminality is wildly out of proportion to every other race in the US but I’m sure you have some douche bag excuse for that too. Now on the other hand ,seeing how this story is referring only to the federal justice system the examples given by some of the commenters really don’t have anything to do with federal court. The story only mentions “federal crimes”, would be interesting to know the types of crimes but this is Witness La so what do you expect?

  • Finally the dismissiveness that is attributed to people of color, specifically black males, in the legal system is now being exposed. This not only happens in America but in every Country where blacks are the minority as a result of the African Diaspora.

    • Hey Julius, how about the countries where blacks are the majority? Why do people there risk their lives to get into any western country they can? They don’t seem too worried about your African Diasporia,they just want out of those hell holes.

      • @Kong, You missed it. The comment refers to countries where “Blacks are the minority”. England is one, while France is another. No different from America. The placements of blacks in those countries as well as in the United States was not via air travel or by choice. World history would be a start.

        • “Citizen” You didn’t answer the question. Weak attempt at sophistry. Look at Africa , not so great, Africans seem anxious to move to the west irrespective of “Racism”

  • Hmm…there are many countries in Africa where blacks are the majority. However all these countries suffered under European colonialism and exploitation. It’s hard to judge these countries in today’s light without being aware of their sordid history at the hands of the colonial powers.

    Racism is clearly at the root of many societal ill, but can’t be used as an excuse for continued dysfunction.

  • Otto is dead CF, left to rot in N.Korea by a worthless president who didn’t care enough to get him back for a minor crime. The three UCLA ballers are home and safe, stfu.

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