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.
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