Disparities in Sentencing
Over the past 40 years state and federal sentencing reforms have included voluntary and presumptive sentencing guidelines, mandatory minimum penalties, and so-called three strikes laws. Throughout, many policy makers have stated intentions to ameliorate disparities in the sentencing of racial and ethnic minorities. When making sentencing decisions, courts also take into account community safety, the seriousness of the crime, the defendant’s culpability for the crime and the defendant’s criminal history and community ties, the costs to the criminal justice system, and any potential loss of credibility the court may face if the defendant is later convicted of another crime. These are important factors in judicial exercise of discretion over the type and length of sentence that a court will hand down. However, the complexity of the sentencing process may have resulted in some courts also making judgments about a defendant’s likelihood of future criminal activity based on perceptions about ethnicity and race.
Since the early 1990s the ethnic and racial composition of federal prisons has shifted dramatically. A 2014 Pew Research Center report found that from 1992 to 2012 the radical shift in the racial composition of offenders sentenced in federal court was due in part to increased enforcement of federal immigration laws (Light, Lopez, & Gonzalez-Barrera, 2014). Figure 1 shows that in 1992, 46 percent of offenders sentenced in federal courts were white, 29 percent were black, and 23 percent were Latino. By 2012, Latinos made up the largest share (48 percent) of those sentenced in federal court, followed by whites (27 percent) and blacks (20 percent).
Almost a decade earlier, Spohn’s analysis of the effects of race and ethnicity on the sentencing process in federal courts found that while just 74 percent of convicted whites were sentenced to prison, 80 percent of black offenders and 85 percent of Latino offenders who were convicted were imprisoned (Spohn, 2000).
Latinos are also overrepresented in state incarceration systems. By the end of 2005 Latinos became the largest ethnic group in the California prison population and as of 2013 made up 41 percent of the imprisoned population (Bailey & Hayes, 2006; CDCR, 2013). Demuth and Steffensmeier’s 2004 research found that Hispanics have a 45 percent greater likelihood of being incarcerated than white defendants. That study also found that the likelihood of incarceration for Hispanics is 44 percent higher than whites when convicted of property crimes and 53 percent higher than whites when convicted of drug crimes (Demuth & Steffensmeier, 2004). However, it found no statistical difference in the likelihood of incarceration for violent crimes among defendants who are Hispanic, black, or white.
One reason for the high rates of incarceration of Latinos may be that more punitive deals are offered to Latinos during plea bargaining. In Manhattan in 2010 and 2011, Latinos were five percent more likely than similar white offenders to be offered a custodial sentence—that is, one that included a prison or jail term—for all misdemeanors and 18 percent more likely to receive such an offer for misdemeanor drug offenses (Kutateladze, Tymas, & Crowley, 2014). For felony drug offenses not including those related to marijuana, Latinos were 14 percent more likely than whites to receive a plea offer that included incarceration.
The increased use of mandatory minimum sentences and the increased length of those sentences have also contributed to the disproportionate rate of incarceration for Latinos. Latinos make up 38 percent of those convicted for offenses that carry these penalties—the largest such group—and those on whom such sentences were imposed received an average of seven more years than those who received relief from a mandatory minimum, at average sentences of twelve rather than five years (United States Sentencing Commission, 2011). One way to get relief from a mandatory minimum sentence is through cooperation with law enforcement (known as a “substantial assistance” departure). Studies of sentences issued around the late 90s show, however, that Latino male drug offenders are less likely than white male drug offenders to get a substantial assistance departure (Cano & Spohn, 2012; Hartley, Maddan, & Spohn, 2007). In the Pennsylvania court system around the same time, Latinos of all genders and for all offenses were nearly twice as likely as white offenders to get a mandatory minimum sentence when one was applicable (Ulmer, Kurlycheck, & Kramer, 2007). Drug offenders were about one and a half times as likely to get a mandatory minimum sentence if they were Latino than if they were white, and three-strikers (one type of habitual offenders) were four and a half times as likely to receive such a sentence.
Race and ethnicity also appear to have an effect on an individual’s “habitual offender” designation, which can increase the length of sentence in some states. Crow and Johnson’s 2008 study of the impact of race and ethnicity on habitual offender sentencing in Florida found that Latinos’ chances of being categorized as a habitual offender is 14 percent greater than their white counterparts and that Latino drug offenders have a 51 percent greater chance than whites of being categorized as a habitual offender (Crow & Johnson, 2008). Similarly, Latinos convicted of a violent offence had a 28 percent greater chance of being categorized as a habitual offender (Crow & Johnson, 2008).
Citizen vs. Non-Citizen Sentencing Disparities
The study of sentencing disparities that exist between citizen and non-citizen defendants is complicated by the limited availability of sentencing data that includes the citizenship status of defendants. Further, the sentencing information is fundamentally different for non-citizens because criminal history information may be incomplete and offenders may have committed the additional offense of being in the country illegally. However, the growing number of non-citizen defendants in the federal system requires further examination. According to the United States Sentencing Commission’s report on federal criminal sentencing, between 1991 and 2007 the share of non-citizen offenders rose from 22.7 percent to 37.4 percent (Reedt & Widico-Stroop, 2008). The proportion of non-citizen offenders who were Hispanic also rose during that period, making up at least 80 percent of non-citizen offenders since 1996 (Reedt & Widico-Stroop, 2008).
By far the largest group of Latino offenders in the federal system were convicted of unlawfully entering or remaining in the United States. According to a report released by the Pew Hispanic Center, 48 percent of Latinos sentenced in federal court were sentenced for immigration offenses, while drug offenses and “other offenses” accounted for 37 and 15 percent, respectively (Lopez & Light, 2009). (See Figure 2)
Demuth’s 2002 study of the effects of ethnicity and citizenship status on sentencing in drug cases found that defendants who were non-citizens were more likely to be incarcerated than those who were citizens. Legal aliens were 30 percent more likely to be incarcerated than defendants who were citizens, and illegal aliens were 44 percent more likely to be incarcerated than citizens (Demuth, 2002). Like other studies, Demuth’s study found that black and Hispanic defendants had a higher likelihood of being incarcerated than white defendants (7 percent and 12 percent higher than whites, respectively) (Demuth, 2002). The study found no significant difference in the sentence length for citizens vs. non-citizens. Contrary to some other studies, Demuth found that Hispanics received sentences that were 2.3 months shorter than the sentences of their white counterparts (Demuth, 2002).
For non-citizens facing charges in federal court from 1992 to 2009, analysis suggests a larger disadvantage. According to one study, non-citizens were more than three times as likely to be incarcerated as citizens with similar criminal histories in similar contexts, and their sentences were 6.5 months longer, on average (Light, 2014). These numbers do not include immigration offenders. There is also evidence that non-citizens receive more punitive sentences in districts with growing or larger non-citizen populations, supporting what researchers call a group threat hypothesis (Light, 2014; Wu & D’Angelo, 2014).
In 2009, Melissa Logue’s study explored how national origin affected sentencing disparities between undocumented and documented non-citizen immigrants. The study found that, while longer sentences were issued to both Mexican and non-Mexican Latino undocumented immigrants than their documented counterparts, the difference was bigger for Mexicans than non-Mexicans (Logue, 2009).
Racial Disparities and Legal Profession Demographics
King, Johnson, and McGeever (2010) theorized that some of the variation in findings of studies of racial disparities in sentencing was the result of researchers failing to include variables to control for the demographic makeup of the legal profession. They theorized that the demographic makeup of the legal profession would affect pretrial and sentencing outcomes.
As of 2010, only 5.5 percent of legal workers in the U.S.—including 3.4 percent of lawyers and 7.8 percent of judges—were Hispanic (U.S. Census Bureau, 2012). One study notes that “[w]ith respect to criminal sentencing, one reason why diversity in the legal profession would mitigate sentencing disparities is because nonwhite defendants have a higher likelihood of encountering nonwhite decision makers such as judges, prosecutors, and defense attorneys. The latter would presumably be less inclined to discriminate against defendants of the same race” (King et al., 2010).
The study of the impacts of the composition of the legal profession on sentencing of racial and ethnic minorities found that overall the probability of receiving incarceration was significantly greater for Latinos (44 percent) and blacks (29 percent) than for whites. The rates of incarceration for blacks went down and those who were sentenced faced shorter terms in counties with greater percentages of black attorneys. Alternatively, the rates of incarceration for Latinos did not decline as the percentage of Latino attorneys increased. However, Latinos’ prison sentences became shorter as the percentage of Latino attorneys increased (King et al., 2010).
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