Racial Disparity in Sentencing

Racial disparity in sentencing is a problematic issue within the criminal justice system. There are of course people who would like to believe that it does not exist. Yet, there is substantial proof which shows that it does exist. There is a definite reason to be concerned about racial disparity in sentencing. According to the research of Marc Mauer, there has been an “unprecedented rise in the prison population over the past three decades a six fold increase, leading to the incarceration of nearly two million Americans.” This can be broken down as follows:” One of every eight black males in the 25-34 age groups is locked up on any given day and 32% of black males born today can expect to spend time in a state or federal prisons if the current trends continue.” (Mauer, 2004, p. 79)

There are four reasons as to why racial disparity continues to flourish. These reasons are: prosecutorial discretion, ineffective assistance of council and procedural bars, venue and jury selection and racism by jurors. (Tabak, 1999, p. 6).According to Tabak these reasons apply in cases in which the death penalty may be sought. Documented research shows that in the states of California and New York prosecutors have broad spectrums for discretion in seeking the death penalty. “The death penalty can be sought for any intentional murder committed during the course of a felony, and the intent to commit murder can be formed instantaneously before the killing without premeditation.” (Tabak, 1999, p.6).

To illustrate the use of prosecutorial discretion there are two types of crimes which can be compared; white collar crime and street crime. (Mauer, 2004, p. 86) In cases of white collar crime the sentences imposed are usually lesser than for those who commit regular street crimes. A person who cheats on their taxes is most likely not going to ever spend a day in jail. It is usually handled by the IRS (Internal Revenue Service). While on the other hand it is “possible to receive up to five years in prison for the possession of a small quantity of drugs.” (Mauer, 2004 P. 86-87). This really begins to raise the question of: Why people who commit street crimes are punished so harshly, while those who commit equally heinous crimes such as fraud are less likely to ever step foot in court?

The second reason of why racial disparity exists within sentencing is due to ineffective assistance of counsel and procedural bars. The problem lies within the fact that “proving ineffective assistance of counsel is structured in such a way that it is extremely difficult to show that a lawyer is ineffectual.” (Tabak, 1999, p. 6). In a different perspective, for a person facing the death penalty or life in prison they may seem desperate to anyone they may try to appeal to about ineffective counsel. While it is illegal to deliberately railroad or throw a case, it can be almost impossible to prove that this is what has happened. An example of ineffective counsel can be illustrated by describing a black male who came from a community with only 30% of other black people. The male on trial is accused of killing and raping a white woman. The biggest problem of all, his jury is all white. The defendant’s public defender failed to object to the jury selection process. The case described was the actual case of Johnny Lee Gates. (Tabak, 1999, p. 6)

The third reason of racial disparity in sentencing is caused by venue and jury selection. The phrase “location is everything” can prove to be a painful truth for those who are punished for being placed on trial in the wrong neighborhood. It is not uncommon for prosecutors to choose venues for the defendants which “result in all white juries.” (Tabak, 1999, p. 6). The secondary problem of selecting a jury, especially in cases involving black defendants is caused by the lack of questioning the jurors outside of the presence of the other jurors. It is not uncommon for the jurors to give politically correct answers in front of others, but in private their racism may be revealed. With the use of the Witherspoon questioning method many black jurors are immediately excluded from juries. This of course creates an all white jury. The way that people are excluded from a jury depends on how they answer the following questions: Those who would never be willing to impose the death penalty, and in cases of capital conviction would vote for the death penalty can be automatically excluded from the jury.

A large percentage of African Americans are opposed to the death penalty, this is in comparison to the general public. (Tabak, 1999, p. 6-7) It is not uncommon for prosecutors to discriminate against Black Americans during their discretionary challenges. This power to use discretion can be blatantly abused by prosecutors. In the case of Albert Jefferson in Alabama, the prosecutor in the case used his discretion to oppose “twenty four of the twenty six potential black jurors.” (Tabak, 1999, p.7) This of course resulted in an all white jury for the trial. This is wrong on all levels because we as Americans are allowed to have a trial by a jury of our peers. The exclusion of all minorities in juries is a violation against a fair and objective trial for the defendant.

The last reason for racial disparity in sentencing is caused by racist jurors. There is substantial cause to believe that if there is not at least one Black American serving on the jury when the defendant is black, there will be a racial disparity. Another real example of disparity in action was the case of William Hance. There was one black juror who did not feel that the death penalty was right. However while she was the only one who voted this way, which could have meant a life sentence instead of death, the foreperson gave false information at the trial. The foreperson for the jury gave a false statement in regards to the decision that had been made by the jurors. The sole black juror was afraid to come forward until it was too late; the defendant was in fact executed. (Tabak, 1999, p.7)

The truth of the matter is that racial disparity exists within the sentencing of defendants. It is said that nationwide 90% of those who are convicted for crack cocaine violation are black. (Kennedy 1996, p. 18-19). The flip side to that is the fact that white people are more likely to use powdered cocaine. The punishment is harsher for the crack substance. There is an assumption that crack is basically the same drug as powdered cocaine, with the addition of baking soda. (Kennedy, 1996, p. 19) This is not true. The current federal law imposes “A harsher prison sentence for crack cocaine possession cases.” (Boies, Gorton, 1999, p.52). This law has been called “racist” and unfair by many of the legislators. However when we look at even more statistics surrounding this type of case in which we see 90% of all people arrested are black we must dig deeper. The problem with crack cocaine is that crack is “generally cheaper, more addictive, more easily distributed, and associated with higher rates of violence than the powdered cocaine”. (Kennedy, 1996, p. 20)

It should be taken into consideration that we are a society which thrives on the use of stereotypes. We have made a prison or jail stay almost an “obligatory stage in the life cycle of young black men.” (Mauer, 2004, p. 80) This shows further proof that we “choose to respond to criminal problems because we are racially determined.” Many people in society view crime as a “black problem.” (Mauer, 2004, p. 80) The uses of “white stereotypes” of black criminals have portrayed even the upstanding black citizens as a “menace” to society. (Kennedy 1996, p. 20).

The problem that comes with the use of these “white stereotypes” is the lasting impact that they have on society’s perception of Black Americans. People who use “crack dealers as representatives of the entire black community are truly doing a disservice to the entire population of Black Americans.” (Kennedy, 1996, p. 20). The truth is that there are more upstanding Black Americans than there are crack dealers.

It is in our human nature, that we as people have a hard time letting go of our negative experiences. We tend to assume that because one experience was a certain way with a particular person, that it will always be that way. Each experience is unique and we must put previous negative experiences aside in order to remain objective. It has become a stigma for black males in America, because people have preconceived notions that they personally are responsible for all the crime.

Professor Randall Kennedy is a Black American, who teaches Law at Harvard University. Professor Randall made a thought provoking comment that “Courts authorize the police to treat a persons race-typically blackness- as a proxy for an increased likelihood for misconduct.” With this said, we must wonder why if we know that there is a serious disparity within the system, why we keep repeating our actions, and continually fuel the stereotypes that keep these perceptions and fears alive.

The statistics strongly support this information. In a study conducted by the Rand Corporation in 1983, it was estimated that Blacks and Hispanics received longer sentences and spent more time in jail than their white counterparts who were convicted of similar crimes and with similar criminal records. (Silas, 1983 p. 1355). It was also discovered that the courts in California imposed sentences six and a half months longer for Hispanics, and 1 and a half months longer for Blacks when compared to white inmates. The study also came to the conclusion that blacks and Hispanics were more likely to serve a “greater portion” of their sentence in comparison to their white counterparts. (Silas, 1983 p.1355)

In a political speech, Bobby Rush a democratic representative asked the question: “Is there a conspiracy, to incarcerate as many African American males as possible?”(Kennedy 1996, p.20) It is believed that because of this way of thinking that many black jurors have taken justice in their own hands to avoid sending any more black men to jail. This in itself creates even more problems; we then begin to let criminals out of punishment that they deserve. Criminals regardless of their race should be punished, but not in excess compared to the majority of people. However we must realize that this is a problem that has been ongoing for many years, and it will continually worsen over time.

The four critical points of why racial disparity occurs during sentencing have not been addressed by the criminal justice system. The abuse of prosecutorial discretion needs to be monitored more closely with objective parties. The use of ineffective counsel appointed to defendants, especially those of minority races needs to be watched closely as well. This is true especially in cases with venue and jury selection issues such as all white juries for minorities. This is not a jury of those people’s peers. That is a clear case of what is best for the prosecution, especially in cases with minority defendants. Lastly, racism by jurors needs to be addressed before the jurors are accepted into the position to judge another persons life. The questioning should be extensive to ensure that there will be a fair and objective people listening to all the evidence, and basing their decision on the facts, not the race of the defendant. There is substantial evidence that racial disparity in sentencing exists, however the problem is how we can fix the problem without making it worse.


Boies, J., Gorton, J. (1999) Sentencing Guidelines and Racial Disparity across Time: Pennsylvania Prison Sentences in 1977, 1983, 1992 and 1993 * 37-54. Retrieved June 27, 2005 from EBSCO Host database.

Kennedy, R. (1996) Is Everything Race? The New Republic, 18-21. Retrieved July 1, 2005 from EBSCO Host Database.

Mauer, M. (2004) Race, Class, and the Development of Criminal Justice Policy, Review Of Policy Research, Volume 21, Number 1, 79-92. Retrieved June 26, 2005 from EBSCO Host database.

Silas, F. (1983) Serving time: Sentencing Disparities Shown, p.1355 Retrieved July 2, 2005 from EBSCO Host database

Tabak, R. (1999). Racial Discrimination in Implementing the Death Penalty. Human Rights 5-8. Retrieved June 24, 2005 from EBSCO Host database.

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