Race & Justice News is a monthly electronic newsletter produced by The Sentencing Project. To receive the newsletter in your inbox, sign up here.
Are Judges or Prosecutors Driving Racial Disparity in Post-Booker Sentencing?
While overall federal sentence lengths have decreased since United States v. Booker, blacks and Hispanics are sentenced more harshly than whites, according to Jeffrey S. Nowacki’s recent analysis in Crime & Delinquency. In the 2005 Booker decision, the United States Supreme Court enhanced judicial discretion in sentencing determinations by making the federal sentencing guidelines advisory, rather than mandatory (with a modest impact). Nowacki examines federal sentencing data between 2002 and 2008, controlling for factors such as offense severity and criminal history, and finds that greater judicial discretion increased racial disparity in post-Bookersentencing. He also shows that the effect of race and ethnicity varies across the distribution of sentence lengths: “Black offenders were sentenced for longer periods of time at all stages except the 10th and 25th percentiles, and Hispanics sentenced after Booker were only sentenced longer in the 10th and 25th percentiles.” A recent working paper prepared by Abt Associates for the Bureau of Justice Statistics also notes that “blacks have not benefited as much from the increased leniency afforded to whites,” and finds no racial disparity in women’s sentences.
Nowacki’s conclusions run counter to those which Sonja B. Starr and M. Marit Rehavi published in The Yale Law Journal. Starr and Rehavi’s analysis shows that the Booker decision did not increase racial disparity in judicial sentencing determinations; rather prosecutors’ charging decisions “appear to be the dominant procedural sources of disparity.” Byungbae Kim, Cassia Spohn, and E. C. Hedberg’s recent article in Criminology also underscores that prosecutors’ “discretionary decisions lead to sentencing disparities that are larger than those attributable to judges.”
Caddo Parish Elects First Black District Attorney
In a historic vote, former judge James E. Stewart became the first black district attorney ever elected in Caddo Parish, Louisiana – one of the top jurisdictions in the nation for sending people to death row. Stewart, a Democrat, received 55% of votes in a special election for the district attorney’s office. George Soros supported Stewart’s candidacy with over $900,000 in contributions to a super PAC.
Stewart’s predecessor, Dale Cox, recently told the Shreveport Times, “I think we need to kill more people,” sparking national media interest on the state’s aggressive use of the death penalty and systematic racial discrimination in jury selection. There has been greater nationwide scrutiny over the lack of diversity among elected prosecutors (whites represent 95% of elected prosecutors nationwide), especially since prosecutors play such a key role through their charging and plea negotiating decisions. Stewart’s supporters hope that the first black district attorney will address racial disparities and bring reform to the office.
Pretrial Detention Based on Resources, Not Risk, Produces Racial Disparities and Fuels Mass Incarceration
Writing in the Huffingon Post, Professor Cynthia Jones and Nancy Gist of the Pretrial Racial Justice Initiative call attention to the country’s dysfunctional bail process and how it produces racial disparities throughout the justice system and fuels mass incarceration. Most pretrial defendants are in jail simply because they cannot afford to pay the money bond imposed by the court – not because they are a public safety or flight risk, explain Jones and Gist. Because poor people in the United States are more likely to be people of color, black and Latino defendants are more likely to experience pretrial detention.
Pretrial detention can result in job or housing loss and other dire collateral consequences. “This reality creates a strong incentive for pretrial detainees to plead guilty – regardless of their guilt or innocence – which starts a cycle of imprisonment that is a major driver of mass incarceration.” People in pretrial detention are three times more likely to be sentenced to prison and receive longer prison sentences than people on pretrial release.
According to the authors, creating a bail system that is based on risk and not resources, like in Kentucky or the District of Columbia, will spare tens of thousands of people from pretrial detention and disrupt the cycle of mass incarceration.
Deeper Justice-System Involvement Increases Youth Mortality
While previous studies have demonstrated that justice-involved youth have increased risks of early death, a new study in the American Journal of Preventative Medicine finds that these risks increase with deeper involvement in the justice system. In “Mortality of Youth Offenders Along a Continuum of Justice System Involvement,”Matthew C. Aalsma and colleagues review mortality for nearly 50,000 Indianapolis-area youth over a 13-year period, 62% of whom had been arrested. In examining the 500 deaths among this group, the researchers find that deeper justice system involvement – arrest, detention, commitment, and transfer to adult court – was associated with a greater risk of death.
The most common causes of death were homicide (48%), overdose (15%), other accidents (14%), suicide (12%), and natural causes (12%). The likelihood of death for system-involved youth was higher for African Americans than for whites.
Minority Threat and Juvenile Court Outcomes
Michael Leiber, Jennifer Peck, and Nancy Rodriquez’s article in Crime and Delinquency examines the relationship between the “racial/ethnic threat thesis” and youth court outcomes for black and Latino children. The racial/ethnic threat thesis predicts that various forms of social control will expand as the economic status and political power of people of color increases in relation to whites. Building upon previous criminal justice research, the researchers hypothesized that communities with a large minority population and greater economic equality pose a greater threat to whites, and thus would have more severe youth court outcomes for children of color. Their analysis of youth court proceedings involving 37 counties in three states did not indicate that minority presence and economic status were related to increased youth punishment.