Short And Ugly: Sentencing Still Isn’t Simple

Dara Lind at Vox gives up one of those delightful “good news, bad news” posts on what the numbers show about federal sentencing post Booker.

There’s good news and bad news about sentences in federal prison. The good news: Prison sentences are getting shorter. The bad news: Black defendants are still getting longer sentences than white ones for the same crimes — and the racial gap is actually growing.

That’s the conclusion of a new study conducted for the Bureau of Justice Statistics, based on data from 2005 — after a Supreme Court decision gave judges more flexibility in sentencing — through 2012. But it’s certainly not the first study to find that even when the criminal-justice system as a whole is getting more lenient, that leniency varies depending on the race of the defendant. And it’s a big challenge for criminal justice reformers — who end up caught in a terrible double bind.

To get the simplistic answer out of the way up front, these numbers present an inherent conflict that defies simple solutions.  Yes, we all hate that, but it happens. The problem is that what’s gained on one side is lost on another.

Does this mean that federal judges hate blacks?  It’s not like they’re drawn from a pool of lawyers who are particularly sensitive to social justice issues. In fact, there is essentially no chance whatsoever that SJWs are likely to be considered for the bench, but that doesn’t mean that the Biglaw, politically-connected types, or the former AUSAs, who predominate the federal judiciary, are any more biased than the rest of us.

But when we ask that judges take into account the individualized backgrounds of defendants, the full nature of the offense, and consider all salient details rather than the most superficial aspects that fit neatly into a grid, we also get the bad with the good.

Sure, some judges have long recognized that sentences as required by the federal Sentencing Guidelines were off the charts Draconian, despite the myth that the reflected nothing more than the average sentenced meted out for particular offenses by defendants with a few particular characteristics.  And some judges today, reared under the Guidelines, think these Draconian sentences are what sentences are supposed to be, because they’ve never known the wonderful world of sentencing before the Guidelines.

But when they get to make decisions after the defense presents a human being in place of the cartoon characters anticipated by the Guidelines, it turns out that they realize that life plus cancer isn’t really the appropriate sentence.  This is what we’ve fought for, hard and long, to be able to argue that defendants aren’t the monsters that grids would make of them.

So why do minority defendants still get slammed harder than whites, even if less than the Guidelines would dictate?

When judges get to decide whether someone deserves to get a shorter sentence than the guidelines recommend, they might find some kinds of defendants more deserving than others — based on factors that happen to be racially skewed (like education or employment), or based on plain old implicit racial bias. It’s hard to judge this just by looking at average sentence length for a given crime, just because there’s so much variation in the recommended sentences for each crime. Two people can be convicted of robbery, but, if one of them has a long criminal history and the other one was coerced into the robbery by an abusive boyfriend, federal policy says the second one should get a shorter sentence for it.

By looking at sentencing numbers in aggregate, it certainly emits the unpleasant odor of racial prejudice.  If we were to parse each individualized sentence, there would likely be a relatively acceptable explanation for why a particular sentence was imposed.  I say “relatively” because there is never a hard explanation for it.  Why 78 months instead of 79? Or 53? Or 82? Sentencing has more in common with bingo than science.

But Dara Lind is onto something when she notes that there remains an inherent problem with sentences “based on factors that happen to be racially skewed (like education or employment).”  By looking at the factors that predict recidivism, or the likelihood of future successful transition into a law-abiding citizen, there is a grossly disproportionate impact for a black defendant who grew up in poverty to bear all the indicia of being a bad dude, and who is likely to continue to be a bad dude when he comes out.

People adore looking at rap sheets when deciding whom to hate the most.  The rhetoric around them can be deafening.  After all, doesn’t everybody know that anyone who committed a crime is criminally? And if they’re criminally, then don’t they deserve a harsher sentence?

Except when you happen to live in a place where the cops like to toss people against walls, arrest them for trivial offenses to please the Compstat gods, or for no offense at all but knowing they’ll cop a plea to an amorphous charge to get out at arraignment rather than sit in jail for a few years awaiting trial, you end up with a whole lot of people with rap sheets that make them look pretty criminally.

And there’s no arguing with the rap sheet afterward.  When these defendants stand before a federal judge for being the guy standing on the corner selling nickel bags in a 25 defendant conspiracy case, or the guy who fetches coffee for the guy standing on the corner, the rap sheet tells all. How can a judge give the same sentence to this defendant with a long rap sheet that he would give the first offender with a home in the suburbs and two lovely kids in private school?

Is this prejudice?  You bet it is.  Not direct prejudice, in the sense that a judge hates blacks, but systemic prejudice reflecting the fact that the poor, the minority, the defendant whose background reveals the lifestyle of someone who grew up on the streets, come before a judge looking a whole lot worse than someone who had every benefit and still chose to commit a crime.

So what’s the answer? No matter which way you turn it, there is no simple solution. Just a lot of choices, and none of them very good.

 

 

7 thoughts on “Short And Ugly: Sentencing Still Isn’t Simple

  1. Bartleby the Scrivener

    I have to assume that within the list of options where none are good, that some of the options are less bad than others. Of those that are less bad than the others, I think I tend to prefer the ones that err on the side of freedom and rights, rather than more prosecutions and prisons.

    When it comes to risks, assuming the increases are equal, I think I’d prefer the random risk of an increased crime rate than I would the focused risk of an overzealous justice system that wrongfully prosecutes and imprisons folks.

      1. delurking

        “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

        ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

          1. delurking

            I’m sorry, I was not thinking your tone was scornful, I just wanted the quote to be recognizable.

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