Stereotypes create discrimination on the basis of race and national origin from policing to sentencing. This is fact especially since racial disparity in a criminal justice system is said to exist when the percentage of an ethnic or racial group that is in control of that system is bigger than the percentage of that ethnic or racial group in the total population. Some schools of thought differentiate between legitimate and illegitimate racial disparity, and distinguishes the latter as that which results from dissimilarity in the treatment of people in similar situations but of different races or ethnic groups. (The Sentencing Project, 2000, p. 2). With regard to causes, there is a consensus in two bodies of research that the causes of the disparity can be traced to biases at every stage of the judicial process, from biases in policing, to biases in prosecution, all the way to sentencing (The Sentencing Project, 2000, p. 2, Weich and Angulo, n.d., 196).
Racial disparity in the system is said to manifest itself in various ways. One is through the “driving while black” phenomenon, where African Americans are over represented in random stop and search operations by police, even though they account for a small fraction of all drivers and traffic violators. Another is the greater likelihood that blacks charged with felonies are going to be detained, compared to whites. Another is the fact that 46 percent of prison inmates are African Americans, even though they only make up 12 percent of the American population. Another is that Blacks males have a 30 percent chance of being incarcerated in their lifetime, as compared to 16 percent for Hispanic males and four percent for white males. A glaring example is that of the plight of African American youth. While representing 15 percent of the total number of people in their age group, they account for 26 percent of all juvenile arrests, 31 percent of referrals to the juvenile courts, 46 percent of adult court waivers, and 58 percent of all juveniles sent to prison (The Sentencing Project, 2000, p. 3).
In the area of sentencing, it has been noted that race remains an important presence in the sentencing process in the American system, with the issue of race not being brought up as explicitly as it had been in the mid 1950’s in the American South, but rather is tied up “surreptitiously” in connection with a host of other factors that may are only implicitly linked to race (The Sentencing Project, 2005, 1). The rest of the paper looks at the causes of racial disparity in general, and how disparity manifests itself. The paper then focuses on the nature, causes, and issues tied to racial disparity in sentencing in particular.
In theory, racial disparity in sentencing is supposed to have been eliminated with the passage of the Sentencing Reform Act of 1984, said to be designed “to eliminate sentencing disparities and state explicitly that race, gender, ethnicity, and income should not affect the sentence length” (Mustard, 2001, pp. 1-2). In practice, however, we have already noted that disparities in sentencing are a fact, caused by many overt and subtle factors related to race. The Sentencing Project concludes, in a study that rigorously used credible evidence that “racial bias continues to pervade the US criminal justice sentencing system”, and that race has historically been a major determinant of sentencing outcomes (The Sentencing Project, 2005, p. 17).
In particular, a study has found out that blacks, males and offenders who have low educational attainments and low incomes are generally sentenced to longer jail terms than most. Also, the same study found that blacks and males are less likely to not be sentenced to jail terms when the option for no jail terms is present. Moreover, blacks and males are also less likely to have their prison terms reduced, and are more likely to be have their jail terms adjusted upward by the courts (Mustard, 2001, p. 1).
Other studies corroborate these findings. Yaeger and Schanzenbach, for instance, studying data collected by the United States Sentencing Commission on 51,805 white-collar offenses from 1992-1998, conclude that “significant racial disparities persist in the length of the prison term even when only white collar offenses are examined”, and that “education, the number of dependents, income, and age affect the length of the prison sentence”. The study also notes that whites are more frequently fined than black and Hispanics, in place of prison terms, suggesting that people’s capacity to pay, which is a function of race, also influences who goes to jail or not (Yaeger and Schazenbach, n.d., p.1).
In New York, a state study between 1990 and 1992 found out that one third of minorities sentenced to prison terms would have received lighter sentences had they been whites. Another study found that blacks in the US in general are sentenced to prison 52 percent of the time, compared to 34 percent for whites. Moreover, not only are blacks more frequently put to prison than whites, they also serve longer jail terms than whites in general (Welch and Angulo, n.d., p.198).
The Sentencing Project offers more proof, based on its findings, on the prevalence of stereotyping and discrimination in sentencing. In a recent study, the group found that young, black and Latino males are harshly sentenced compared to other defendants, especially when they are unemployed. They also found out that black and Latino defendants are disadvantaged when it comes to factors related to the legal process, such as with regard to trial penalties, sentence reductions due to substantial assistance, criminal history, pretrial detention, and type of attorney. They discovered, moreover, that blacks who harm whites receive harsher sentences than blacks who harm blacks and whites who harm whites and non-whites. Also, blacks and Latino defendants are more likely to be sentenced harshly compared to whites. Finally, they found that in the majority of the cases they examined, defendants are more likely to receive the death sentence for crimes against white victims, and that minority defendants are more likely to be sentenced to death than whites (The Sentencing Project, 2005, p.2). The above study looked for evidence of racial disparities in sentencing in the areas of direct racial discrimination, interaction of race/ethnicity with other offender characteristics, interaction and indirect effects of race/ethnicity and process-related factors, interaction of race/ethnicity and type of crime, and capital punishment (The Sentencing Project, 2005, p. 3).
Racial disparity in sentencing is a fact. It reflects racial discrimination in the other aspects of the criminal justice system in the US, as well as the racial disparities in society in general. Because it affects many aspects of the system, solutions to the problem must be found not only during the sentencing process, but also in other aspects of the system itself, notably in the area of policing, prosecution, and laws legislation.