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February 15, 2013

Wall Street Journal covers USSC's new Booker report (and its unusual coverage)

The Wall Street Journal has a pair of new pieces based on the US Sentencing Commission's recently released Booker report.  This main one has this provocative headline "Racial Gap in Men's Sentencing," and here are excerpts:

Prison sentences of black men were nearly 20% longer than those of white men for similar crimes in recent years, an analysis by the U.S. Sentencing Commission found.   That racial gap has widened since the Supreme Court restored judicial discretion in sentencing in 2005, according to the Sentencing Commission's findings, which were submitted to Congress last month and released publicly this week.

In its report, the commission recommended that federal judges give sentencing guidelines more weight, and that appeals courts more closely scrutinize sentences that fall beyond them.

The commission, which is part of the judicial branch, was careful to avoid the implication of racism among federal judges, acknowledging that they "make sentencing decisions based on many legitimate considerations that are not or cannot be measured."

Still, the findings drew criticism from advocacy groups and researchers, who said the commission's focus on the very end of the criminal-justice process ignored possible bias at earlier stages, such as when a person is arrested and charged, or enters into a plea deal with prosecutors.

"They've only got data on this final slice of the process, but they are still missing crucial parts of the criminal-justice process," said Sonja Starr, a law professor at the University of Michigan, who has analyzed sentencing and arrest data and found no marked increase in racial disparity since 2005....

In the two years after the Booker ruling, sentences of blacks were on average 15.2% longer than the sentences of similarly situated whites, according to the Sentencing Commission report.  Between December 2007 and September 2011, the most recent period covered in the report, sentences of black males were 19.5% longer than those for whites. The analysis also found that black males were 25% less likely than whites in the same period to receive a sentence below the guidelines' range.

The Sentencing Commission released a similar report in 2010. Researchers criticized its analysis for including sentences of probation, which they argued amplified the demographic differences.

In the new study, the Sentencing Commission conducted a separate analysis that excluded sentences of probation.  It yielded the same pattern, but the racial disparity was less pronounced. Sentences of black males were 14.5% longer than whites, rather than nearly 20%.

Jeff Ulmer, a sociology professor at Pennsylvania State University, described the commission's latest report as an improvement but said it was "a long way from proving that [judicial discretion] has caused greater black-white federal sentencing disparity."

For reasons that will be obvious if you click through to the story, I especially enjoyed this companion piece appearing at the WSJ Law Blog under the headline "After 'Anonymous' Attack, Sentencing Body Seeks Blogger's Help."

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February 15, 2013 at 10:17 AM | Permalink

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I am an attorney who regularly represents federal defendants at sentencing or on direct appeal. Under ยงยง 841(b)(1) and 851, two minor felony possession of drug offenses trigger massive increases in the statutory minimum penalties for a federal drug offense.

Just to throw it out there.... is it possible the racial disparity in federal sentencing is a result of a higher percentage of African-American offenders having a prior drug record? This would appear to be a symptom of instutionalized racism, not racism of federal judges or the federal courts. Congress needs to fix this problem! Judges are forced to impose harsh statutory minimum punishments when they would have otherwise sentenced the offender to a lower sentence.

Posted by: Matthew Robinson | Feb 20, 2013 9:07:02 AM

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