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December 20, 2012

Just Sentencing # 7: The problem of disparate racial impact; concluding remarks

Richard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):

In my last post I examined one of the most difficult and important problems of punishment theory and practice: sentencing enhancements for repeat offending (prior and/or multiple current convictions).  In this final post, I’ll examine a second (but related) difficult and important problem: the disparate racial impact of seemingly race-neutral sentencing policies, and the resulting stark racial and ethnic disproportionality of prison and jail populations.  I address this topic in greater detail in the final chapter of my book.  

One of the most serious collateral consequences of punishment, and one that is so pervasive that I believe it requires recognition of a separate sentencing principle and accompanying procedures, is the tendency of severe criminal penalties to compound and worsen the plight of already disadvantaged minority groups, thus reinforcing and perpetuating social inequality.  Like my model’s desert-based limits, the social equality principle sets upper and occasionally lower limits on sanction severity, and may also affect decisions about the form of punishment.

The need to forthrightly confront this problem is clear.  Notwithstanding gains in civil rights and social status for many nonwhite Americans, there remains a core of multiply disadvantaged, predominately black citizens who seem condemned to an unending cycle of poverty, heightened risk of becoming an offender (and/or crime victim), incarceration, and release to worsened disadvantage followed by repeated crime and further (usually, enhanced) punishment.  The results of this repeating cycle can be seen in the substantial and persistent racial disproportionality of inmate populations.  Although some white Americans are victims of similar long-term, multidimensional disadvantage, the disadvantage suffered by nonwhites, especially blacks, is of a different order of magnitude — more profound, harder to escape, and more likely to persist across multiple generations.

A model sentencing system must protect disadvantaged minority citizens both as potential victims (providing an additional ground for minimum sanction severity) and as offenders (limiting maximum severity or the form of punishment, even if in the short run greater severity or a different form of punishment might help protect minority or other victims).  Unfortunately, recent American sentencing practices, combined with lack of metropolitan regional planning and inadequate social welfare programs, seem to have worsened social and racial inequalities. Such inequalities breed crime, and undermine respect for and cooperation with law enforcement.  Of course, the criminal justice system cannot solve deeply entrenched social inequalities, but it can, and must, avoid making them worse.

The inequality-perpetuating effects of punishment can be attacked on both the systemic and the individual-case levels.  At the systemic level, guidelines commissions are well-equipped to tackle these issues.  Such commissions have and should make use of their capacity to conduct racial-impact assessments, identify the racially disparate effects of particular sentencing policies, and propose guidelines rules and needed legislative changes to reduce those effects.  For example, guidelines and statutes could be devised or modified to give limited weight to the offender’s prior conviction record, in light of the strongly disparate impact of this factor.  It is particularly important to reduce or eliminate criminal history score components that have little if any validity as predictors of recidivism risk.  It may also be appropriate to give lesser or “capped” weight to certain types of prior record with especially strong disparate impact, for example: 1) traffic, drug, and public-order convictions that reflect disparities in law enforcement practices; and 2) a series of prior crimes (especially: drug possession and low-level sale) that reflects addiction, disadvantaged circumstances, or other factors that would cause the offender’s unadjusted “record” to overstate his culpability and (if his condition could be or has been treated) his recidivism risk. My model also recommends that sentencing commissions identify and make recommendations for reducing the disparate impacts of collateral consequences of conviction, since these further perpetuate social disadvantage, and cause more crime.

Addressing inequality issues is more problematic at the case level, given the difficulty of making reliable and consistent assessments on an individualized basis. But there may be room for courts to tailor at least the form and sometimes the severity of the sentence, to reflect cases where an executed prison term would seriously worsen the offender’s disadvantage, or where his or her deprived background and lack of good options to avoid criminal involvement strongly suggests diminished culpability.  Of course, some of these offenders do pose a higher risk, especially to other disadvantaged persons.  But total confinement in prison or jail is not the only way to manage that risk. Such offenders can be released under close supervision, GPS monitoring, halfway-house or other periodic community confinement, in- or outpatient treatment, and other intermediate sanctions that avoid the damaging effects of incarceration on already disadvantaged offenders.  Although resources to support these alternatives are limited in most jurisdictions, is it both fair and a better long-term crime-control strategy to give disadvantaged, high-risk offenders priority access to those resources.

But, a critic might ask — isn’t my approach modeled on the sentencing guidelines system in Minnesota?  And doesn’t Minnesota have one of the highest rates of racial disparity in its prison and jail populations? Chapter 5 of my book (building on an earlier Crime and Justice article), examines this issue in some detail. Although Minnesota’s inmate racial disparities are not as high as they once were, they are still above the national average for states.  But most of the disparity is present from the point of arrest, and seems to reflect racial differences in offending which in turn result from Minnesota’s unusually high rates of socio-economic racial disparity. When I traced disparity rates through later stages of criminal processing (focusing on black and non-Hispanic white offenders), I found a substantial increase at the point at which the sentencing guidelines are applied: recommended-prison rates are almost 50 percent more disparate than felony-conviction rates.  And well over half of this substantial jump-up in disparity results from the strong and racially disparate impact of offender criminal history in the sentencing of crimes of medium and low severity.  That strong disparate impact is not an inherent feature of guidelines sentencing; it could easily be changed -- and would be, under my model.  

I have not made as detailed a study of criminal history’s contribution to racial disparity in other jurisdictions.  But the available data, and nationwide averages, indicate very substantial racial differences in criminal history; the more weight a jurisdiction gives to this sentencing factor, the more disparate its sentences will be.

Mandatory-minimum sentence laws are also known to have disparate impacts, and the same is undoubtedly true for other seemingly race-neutral sentencing policies (the most notorious example being crack versus powder cocaine penalties).  We need to identify those policies, and make sure they are well-grounded and parsimonious. Otherwise, racial minorities and all of society will continue to incur substantial and unnecessarily high costs, both human and economic.  Chapter 5 of my book catalogues the wide variety of ways in which criminal conviction, and especially incarceration, compounds disadvantage, and thus also the risk of crime, for offenders, their families, and their communities.

This is my last post in this series.  Thanks again to Doug Berman for letting me guest-blog the past two weeks, and thanks to readers for your interest.  I'm sure that everyone will find some things in my model they disagree with, and other things they like.  In a way, that's the main point of the book: the need to find a hybrid approach that most people can live with, balancing competing sentencing purposes and procedural values within a structural framework that has proven workable in practice.  I hope you've been stimulated by what you’ve read, and that you'll consider taking a look at the book.

December 20, 2012 at 09:51 PM | Permalink

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Comments

Only lawyers will favor hybrids. They add complexity, hide unlawful and unconstitutional defects in methods, and require hiring a lawyer to navigate them.

If racism is a factor, much darker skinned African and Caribbean immigrants should be in prison most of all. They are in prison less than whites. Why can't the lawyer face the self-evident.

First our blacks are all half Southern white trash with Irish or Scottish DNA.

Second, race is not a factor in the risk for either antisocial personality disorder nor for drug abuse. Both increase criminality. American blacks have a lower rate of drug abuse than whites.

Lastly, the lawyer will not admit that bastardy explains all racial disparities. Bastardy has been an affirmative policy of the feminist lawyer and its male running dogs so that government service would grow, even at the expense of an excessive 5000 extra murders of blacks a year. It took the Klan 100 years to lynch 5000 black males. The feminist lawyer is achieving this mass murder in a year.

Before whites feel any smugness, the feminist lawyer is attacking the white family from all sides. Whites are next. All consequences of bastardy will be visited upon them.

Posted by: Supremacy Claus | Dec 21, 2012 2:46:55 AM

The top five false defences of our facility's offenders at last assessment, were:
1. rationalisation, 2. minimalisation, 3. deflection, 4. denial, and 5. projection.

Many seem to resonate with Mr. Frase, e.g.:

"his or her deprived background and lack of good options to avoid criminal involvement"...
"multiply disadvantaged, predominately black citizens"...
"heightened risk of becoming an offender"...
"The inequality-perpetuating effects of punishment"...
"overstate his culpability"...
"socio-economic racial disparity"...

Given the suspect foundation, the ensuing recommendations are likewise irresponsible, e.g.:

"guidelines and statutes could be devised or modified to give limited weight
to the offender’s prior conviction record, in light of the strongly disparate impact"…
"the tendency of severe criminal penalties to compound and worsen the plight
of already disadvantaged minority groups, thus reinforcing and perpetuating social inequality…
requires a [different] sentencing principal."

The author's advice is unsound, (mis)characterising criminal behaviour
with such paraiteomai (excuse-making)
as to resemble an apologia (defence) of the malfeasance.

In regard to offenders, Mr. Frase could help get them off, but not actually help them...like needles for a junkie.

First do no harm!

Posted by: Adamakis | Dec 21, 2012 1:34:19 PM

"But most of the disparity is present from the point of arrest, and seems to reflect racial differences in offending..."

Offenders, not the general population, are the correct basis of comparison. If sentences are in proportion to offenses, there is no "disparity."

"... which in turn result from Minnesota’s unusually high rates of socio-economic racial disparity."

Do differences in offending rates, in fact, track socio-economic status? If you stratify by SES, do racial differences disappear within each stratum?

Posted by: Kent Scheidegger | Dec 21, 2012 1:41:22 PM

Thank you very much for your posts. I have now read your book. I believe a good way to describe your approach would be to say that it is a Guided Intuition Model. As you pointed out in your Preface, "It is unreasonable to propose a sentencing model that simply defines away or ignores one set of intuitions or another."

The trouble is, sometimes one's intuitions are dead wrong. This is especially true with respect to probability judgments. Over and over, research has shown that intuition is a very poor guide as to risk. Judges seem to have no trouble intuitively adjusting their sentences to account for risk. But how can anyone say today in a reasoned way how dangerous someone will be in five years.

A better approach would be to adopt a Guided Reasoning Model. Start by delineating all of the provocations embodied in the problem. Map the state's response to each of them with a specific objective, strategy and set of tactics. Make a plan as to each offender. The core of that plan would be a deprivation module. The restraints in a deprivation module would be graduated. Match the components of each module with the components of a program as closely as possible.

A Guided Reasoning Model would satisfy the principles that you have described so well in your book. What's more there would be no conflict between them. All of the state's sentencing objectives would be accomplishable in each case. The system would be fully transparent.

Posted by: Tom McGee | Dec 21, 2012 2:32:48 PM

"But how can anyone say today in a reasoned way how dangerous someone will be in five years."

Simple, count, use your fingers and toes. When you get to the toes, you have a prognostic conclusion with the reliability of planetary orbits.

Posted by: Supremacy Claus | Dec 21, 2012 2:51:36 PM

SC--

You make my point! Your intuition with respect to risk is almost useless. For one thing, prior offenses are rather poor predictors. I works better if you factor in other kinds of information such as family history of criminality and so on. On top of that, risk changes; sometimes for the better and other times for the worse. Why do so many parolees commit another crime? It simple--poor risk determinations.

We would do much better if actuarial methods were used. How much risk is acceptable? How much insurance are we willing to pay?

Posted by: Tom McGee | Dec 21, 2012 5:15:42 PM

Tom: Please explain what goes into the decision making under an actuarial approach. Also, does it require the services of an expensive and hard to find qualified actuary?

Does bastardy, which increases the likelihood of crime, go into the calculation?

Will it use the record of convictions, 95% of which are fictitious adjudicated crimes, agreed to in a plea bargain. Or, will it use the indictment crimes, for which the prosecution originally had evidence? Those can be unrelated entirely.

If a car thief is far more likely to recidivate, and a murderer is extremely unlikely to do so, should we free all the murderers after a few years in prison, and execute the car thieves if interested in preventing recidivism? Does the amount of damage enter the actuarial decision process?

Posted by: Supremacy Claus | Dec 22, 2012 9:07:26 AM

SC--

"Please explain what goes into the decision making under an actuarial approach. Also, does it require the services of an expensive and hard to find qualified actuary?

Factors that estimate the risk of recidivism in general and factors that estimate the probability that a specific kind of crime will be committed. No one can predict these things, but we can make estimates within a probability range. Factors of these kinds can be identified by statistical means.

"Does bastardy, which increases the likelihood of crime, go into the calculation?"

Where in the world did you get an idea like this?

"Will it use the record of convictions, 95% of which are fictitious adjudicated crimes, agreed to in a plea bargain. Or, will it use the indictment crimes, for which the prosecution originally had evidence? Those can be unrelated entirely.

Those factors that have statistical value in estimating the risk. By the way, crimes themselves have only limited value.

"If a car thief is far more likely to recidivate, and a murderer is extremely unlikely to do so, should we free all the murderers after a few years in prison, and execute the car thieves if interested in preventing recidivism?"

Risk and accountability are separate issues. Reasoning is a serial process. First, what should be done to hold the person accountable? The provocations upon which accountability is based ( crime and criminal offense) do not change once established. Risk does change, by age if nothing more. The second issue is what should be done about risk. The level of restraint imposed for each should control at any given point in time.

By the way, law schools do not offer advanced courses in social statistics. Risk control decisions should be made by a Risk Control Board that is properly qualified. Periodically they should decide the level of restraint to impose to control risk. Judges should decide the level and duration of restraint to impose to hold offenders accountable.

" Does the amount of damage enter the actuarial decision process?"

It depends upon whether this is a factor that has predictive value in the case.

Posted by: Tom McGee | Dec 22, 2012 2:45:48 PM

Tom: Will this approach lower crime by what, 5 or 10%? It needs to decrease by 99%. Kill all the criminals between the ages of 14 and 18, and it will by attrition. There will be no criminals since they all be deceased. You come out with a net savings of 17,000 murder victims. One problem, kill all the criminals, and lawyers lose government make work jobs.

Posted by: Supremacy Claus | Dec 24, 2012 3:48:27 AM

SC--

The goal is to "insure public tranquility". We will always have some level of criminality. How much is too much? The system I am proposing formulates this issue as a public policy question. How much risk is acceptable? We should dampen that risk in proportion to its magnitude, taking costs and benefits into consideration.

The proportionality issue here is different from what it is with respect to holding offenders accountable. In other words, the states response to each provocation should stand alone.

Posted by: Tom McGee | Dec 24, 2012 1:47:11 PM

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