By Audrey Sawyer
WASHINGTON, DC – “One in Five: Racial Disparity in Imprisonment – Causes and Remedies.” examines three causes of racial inequity in the criminal legal system, noting promising reforms from over 50 jurisdictions across the country that can mitigate their impact—it is the latest in the series examining racial inequities in America’s criminal legal system by The Sentencing Project.
The first TSP report in the “One and Five” series shows an overview of incarceration and supervision trends. The second report examines the footprint of policing (looking at Black Americans in particular) as a failed response to racial disparities in serious crimes.
The three key causes of racial disparities in The Sentencing Project report are laws and policies appearing race neutral but having a disparate racial impact; noting extreme sentences for violent crimes; and reliance on criminal histories as a basis for determining prison sentences—all are drivers of racial disparities in imprisonment.
The report first emphasizes concern for the “nature of the War on Drugs and the associated sentencing laws that resulted from it,” such as mandatory minimum sentences, crack-cocaine sentencing disparities, drug-free school zone laws, alongside with criminalization of drug possession, all which target Black Americans at disproportionate rates.”
A second reason highlighted in the report is that racial bias influences criminal legal practitioners’ use of discretion. Black and Latinx people are often treated by judges and prosecutors differently (with harsher terms) when referring to sentencing and charging decisions.
The project charges bias is noted in the juries, correctional officers, and parole boards. Police and prosecutors (by unions and professional associations) usually lobby, litigate, and engage in public advocacy to work against reforms.
According to the report, 80 percent of state trial judges were white in 2016, compared to the 30 percent of those accused, who had their cases overseen. Even more of a concern is that there are 18 states without any supreme court justices of color.
The Brennan Center for Justice had published back in 2019 a report about diversity within the supreme court justices, and said that this statistic is seen also in at least 12 states where people of color make up 20 percent of the population.
The same initial report from the Sentencing Project states, “Over 90 percent of Californians who had received a gang enhancement were Black or Latinx in 2020,” and discusses a bill meant to “increase penalties for gang-related crimes and gang recruitment” (Senate Bill 2868) did not win approval in a Mississippi Senate Committee with some indication as to it being containing a significant disparate racial impact.”
The last key reason for disparity in the report is that there is a “financially burdensome, under-resourced criminal legal system.” The report explains that people who have low incomes (disproportionately people of color) are at a disadvantage, as pretrial release is often reliant on cash bail.
In addition, said the report, deals pressure people to take less favorable plea offers, and state indigent defense programs are extremely underfunded.
And the report adds for those struggling with substance abuse disorders, obtaining treatment is difficult, which compromises chances for successful re-entry. Parole and probation supervision imposes scrutiny with a few services.
Nazgol Ghandnoosh, co-director of research with The Sentencing Project and lead author of the report, said, “Racial disparity accumulates as people traverse the criminal legal system. While reforms of the last two decades have helped reduce overall levels of criminal legal system contact, the crisis of mass incarceration and racial injustice persists, and we are at the risk of losing momentum and reversing hard won reforms.”
The fourth (and final) report by the Sentencing Project will be released in January 2024, and is intended to focus on criminal legal policies that harm public safety by intensifying socioeconomic inequalities and the reforms that correct this final source of injustice.
