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October 22, 2015
BJS releases big new statistical study on "Federal Sentencing Disparity: 2005–2012"
As detailed at this webpage, the Bureau of Justice Statistics today released a notable new study, excitingly titled " "Federal Sentencing Disparity: 2005–2012," which is described this way:
Examines patterns of federal sentencing disparity among white and black offenders, by sentence received, and looks at judicial variation in sentencing since Booker v. United States, regardless of race. It summarizes U.S. Sentencing Guidelines, discusses how approaches of other researchers to the study of sentencing practices differ from this approach, defines disparity as used in this study, and explains the methodology. This working paper was prepared by Abt Associates for BJS in response to a request by the Department of Justice's Racial Disparities Working Group to design a study of federal sentencing disparity. Data are from BJS's Federal Justice Statistics Program, which annually collects federal criminal justice processing data from various federal agencies. The analysis uses data mainly from the U.S. Sentencing Commission.
The full lengthy study is available at this link, and this one-page summary highlights some of these notable substantive findings:
Racial disparity
In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case. While there has been a trend toward more lenient sentences overall, white males have seen larger declines in average prison sentences than black males. Black males did not benefit as much from this increased leniency, which widened the existing racial sentencing disparity between these two groups. The disparity between black and white males narrowed as crimes became more serious. Race probably correlated with other characteristics — such as education, income, demeanor, and location — which might have accounted partially for the differing sentences among white and black males.
Judge effect
The exercise of prosecutorial discretion did not change much during the study period, although racial disparity increased during that time. The trend is likely attributable to individual judges’ behavior. Evidence from the study suggests considerable differences in the sentences that judges assigned for white and black offenders. Judges disagreed about the relative sentences for white and black males, and some judges gave black males especially longer sentences. However, judges who imposed above-average prison terms on black offenders also tended to impose above-average prison terms on white offenders. And judges who sentenced white offenders to below-average prison terms also commonly gave below-average prison terms to black offenders. Sentences were disparate in that similarly situated offenders who had committed similar crimes received sentences that differed depending on the judge who imposed the sentence.
Female sentencing
Judges were found to disagree more about the sentences for females than the sentences to be imposed on males. As a whole, females and white males received less severe sentences than black males over the 8-year study period. Black females were found to not be disadvantaged compared to white females.
October 22, 2015 at 07:36 PM | Permalink
Comments
"Sentences were disparate in that similarly situated offenders who had committed similar crimes received sentences that differed depending on the judge who imposed the sentence."
Biggest factor does not make the headline. Stupid judges cannot be trusted. They require mandatory computer apps to do all sentencing, if people want equal justice.
Posted by: Supremacy Claus | Oct 22, 2015 11:08:18 PM
So as Booker freed the JUDGES from the guidelines, racial disparities in sentencing increased. And we want more judicial discretion in sentencing by eliminating mandatory minimums why?
I am sure there is a race neutral explanation that will be proferred, but I wonder how open the sentencing reform, "smart on crime" and anti-law enforcement groups are to such an explanation if given by cops or prosecutors, instead of judges. Either that, or they will blame cops and prosecutors.
Posted by: David | Oct 23, 2015 12:13:31 AM
Couple of quick resposnes, David:
1. I suspect that the resources of defense counsel to make strong mitigation cases to go below guideline ranges most likely explains/accounts for race difference. In my experience, especially because guideline ranges are generally too high in most cases, how far judges go below guidelines is impacted a lot by how much mitigation the defense can put in front of judge. And defense attorneys with more resources (both time/money) can do that most effectively, and it seems (generally speaking) that more defense attorneys for white defendants have more resources.
2. As hinted above, risks of disparity seem greatest when advisory sentences are set much too high and judges are primarily deciding how much to go below these excessive sentences. Sentencing reform, ideally, could reduce disparity because judges would see recommended sentences to be more sound/reasonable and be more likely to follow them for all races of male defendants.
Posted by: Doug B. | Oct 23, 2015 9:01:27 AM
The Bureau of Justice Statistics observes as follows: "Racial disparity
In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case."
Attention Michael Levine, author of "171 Easy Mitigating Factors." You now have number 172. "My black client should receive a 5 to 10% downward variance from the guidelines because of racial disparity"
Posted by: observer | Oct 23, 2015 10:58:06 AM
Doug, I disagree with your first response to David, at least in my district. If I were a D, I would be just as happy having an FPD in my district make my sentencing argument. In fact, there are only a handful of private counsel who I would trust as much as most of the FPDs. Often times a wealthy D has more mitigation type info in his/her past and they normally will have private counsel. That fact should not lead to the conclusion that an FPD could not have done as good of a job with the same information.
In my experience, the type of crime involved is the biggest factor in whether a specific judge departs. In my district, if a tax D gets one judge, jail is almost certain. With another judge, probation is almost certain. The second biggest factor is sex. Females get lower sentences across the board and generally get better plea deals, especially if the wife is a co-defendnat.
Posted by: AUSA12 | Oct 23, 2015 12:02:12 PM
observer, duly noted and thank you for no. 172.
Posted by: Michael R. Levine | Oct 23, 2015 12:37:39 PM
It is outrageous that "In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case." And we are supposed to have a fair criminal "justice" system? I think not.
Posted by: Mary | Oct 23, 2015 1:08:42 PM
Professor Berman:
While you may feel the guidelines are too high, given that they are set by the US Sentencing Commission comprised of many judges it seems to me that collectively they do not believe that they're too high. Regardless, freeing the judges from the constraints of the mandatory guidelines has in fact allowed the existing system to increase the disparity in sentences between blacks and whites. Given this unfortunate reality I wonder whether it is wise to continue to give judges more of that opportunity. Whether it is because of better resourced defense counsel for whites or racism,it's still unfair.
But back to my original point I am still skeptical that a similar race neutral defense would be offered if the studies showed that it was prosecutors or law-enforcement that were the cause of the racial disparity.
Posted by: David | Oct 23, 2015 8:30:03 PM
Michael Levine. Next publishing project. Android app for sentencing. All people with the same inputs get precisely the same sentence.
Judges are lawyers. All lawyers have been made into mental cripples. Therefore all judges are mental cripples. You might let your two year carry your car keys, but never allow her to drive the car unsupervised. Judges should announce sentencing, but never be allowed to determine them. Why? Because they are extremely stupid. And this study adds racism to my stupidity claim.
Posted by: Supremacy Claus | Oct 24, 2015 3:27:42 AM
S.C. writes "All people with the same inputs get precisely the same sentence."
The problem is that the number of "inputs" is infinite. Hence no two persons have the "same inputs."
Posted by: David | Oct 24, 2015 11:08:03 AM
David. Can we agree that the best people to list the most important inputs, as numerous as you can persuade people, should be the elected legislatures?
Posted by: Supremacy Claus | Oct 26, 2015 11:19:28 PM
