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Examining racial disparities in sentencing and plea bargaining

by | Dec 12, 2017 | Criminal Defense

In many ways, news that disparities exist in the U.S. criminal justice system based on race evoke thoughts of Captain Renault, Claude Rains’ character in “Casablanca,” shutting down Rick’s Café and exclaiming, “I’m shocked, shocked to find that gambling is going on in here!”

Unequal justice based on race has been a problem in the U.S. almost as long as there have been prisons. However, it remains important to take notice of new studies that reinforce what many already are aware of – that African-American men serve longer sentences than white men do for the same crime.

After controlling for a wide variety of sentencing factors, a new study by the U.S. Sentencing Commission shows that black male offenders receive sentences on average 19.1 percent longer than similarly situated white male offenders. The commission analyzed sentencing data from 2012 to 2016. The new study updates a 2012 report from the U.S. Sentencing Commission.

Prior to a 2005 Supreme Court decision in United States vs. Booker, federal judges were only allowed to sentence an offender based on guidelines provided by the sentencing commission. That case gave judges the right to enhance an offender’s sentence if warranted by “facts” they determined using their own judgment.

The most recent study states “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.”

Disparities also exist in the plea-bargaining phase

Most of the research on disparities within the U.S. criminal justice system focus on statistics regarding arrest and incarceration. A white paper published this year by Carlos Berdejó, a professor at Loyola Law School in Los Angeles, examines disparities that exist in the plea-bargaining process – a critical stage before judges sentencing decisions can ever be made.

Using a comprehensive data set obtained from the Wisconsin Circuit Courts, Berdejó discovered what he says are “striking racial disparities” in the plea-bargaining process. White defendants are 25 percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge. As a result, white defendants who face initial felony charges are approximately 15 percent more likely than similar black defendants to end up being convicted of a misdemeanor instead.

In addition, white defendants who are initially charged with misdemeanors are 75 percent more likely than black defendants to be convicted for crimes that carry no possible incarceration or not being convicted at all.

Disparities highest for defendants with no prior record

Delving deeper into the research, Berdejó finds that racial disparities in plea bargaining outcomes are most common in cases in which defendants have no prior convictions. In fact, there are no significant racial disparities in cases where defendants have prior convictions. “This pattern suggests that in the absence of evidence of a defendant’s recidivism risk (e.g., when there is no criminal history), prosecutors may be using race as a proxy for the defendant’s likelihood to recidivate,” Berdejó states.

In addition, racial disparities in plea bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. Berdejó surmises this pattern is an indication that prosecutors presume race is an indicator of how likely a defendant is to commit a severe offense in the future and thus is harsher on African-American defendants.

“Although a challenging endeavor, understanding the source of initial charging disparities will shed light into the racial disparities in sentencing and incarceration rates, and help design new policies and programs to address these in a more comprehensive manner,” Berdejó states.

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