Transcript Dealing with Disparity in Federal Court

Dealing with Disparity in
Federal Court
Civil Rights and Sentencing
2009 JRCLS Conference
Harvard Law School
Benji McMurray
Supreme Court Fellow
February 13, 2009
Twin Pillars of Barbarism
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Unwarranted disparity
Uncertainty
The Breakfast Theory of
Punishment
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“[B]efore the Guidelines were implemented,
many defendants trembled at the thought that
the law is what the judge had for
breakfast.”
Michael Goldsmith
Commissioner, U.S. Sentencing Commission 1994-1998
Professor of Law, J. Reuben Clark Law School
Sentencing Reform Act of 1984
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Creation of a Sentencing Commission
Mandatory Sentencing Guidelines
Limitations of relevant considerations
Sentences should punish, deter,
incapacitate, and rehabilitate
Overlay of Mandatory Minimums
Individualized sentencing should avoid
“unwarranted disparity”
So what matters at sentencing?
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Offense characteristics
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Did the defendant use a weapon?
How many victims were there?
How extensive was the harm or loss?
Offender characteristics
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Criminal record
The defendant’s background
NOT the defendant’s race, religion, or gender
Did the SRA eliminate
“unwarranted [racial] disparity”?
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“Racial disparity in the criminal justice system exists
when the proportion of a racial or ethnic group within
the control of the system is greater than the proportion
of such groups in the general population.”
“Illegitimate or unwarranted racial disparity in the
criminal justice system results from the dissimilar
treatment of similarly situated people based on race”
“Structural racism, derived from the longstanding
differential treatment of those with characteristics highly
correlated with race (e.g., poverty) can cause or
aggravate racial disparity as well.”
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Includes any facially neutral policy that disparately impacts
minorities
Evidence of Disparity
Evidence of Disparity
Evidence of Disparity
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African Americans
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Latinos
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38% of prison and jail inmates
13% of population
19% of prison and jail inmates
15% of population
Percent chance a male born in 2001 will spend
time in jail:
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African American – 32%
Hispanic – 17%
White – 6%
Evidence of Racial Bias?
Evidence of Racial Bias?
Evidence of Racial Bias?
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“Virtually every sophisticated review of
social science evidence on criminal justice
decision making has concluded, overall,
that the apparent influence of the
offender’s race on official decisions
concerning individual defendants is slight.”
Michael Tonry, Malign Neglect 52.
Legally Relevant Characteristics and
Structural Bias
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Arrest rates and prosecutorial discretion
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Seriousness of the offense
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Application of facially neutral sentencing
rules and policies
Arrest Rates for Blacks
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Blacks are arrested more for violent crime
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39% of arrests for violent crime
31% of arrests for property crime
Blacks are arrested more for drug crimes
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35% of drug arrests
53% of drug convictions
45% of drug offenders serving prison
sentences
Bias in Arrest Rate?
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Blacks commit violent crime more frequently
than whites
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Victimization surveys suggest that arrest rates
approximate crime rates
Racial profiling
Blacks do not use or sell drugs more frequently
than whites
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In 2006, African Americans constituted 14% of drug
users according to U.S. Dept of Health & Human
Services
War on drugs
Seriousness of the Offense:
Biased Charging Decisions?
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18 U.S.C. § 924(c) (heavy statutory
enhancement for gun possession)
21 U.S.C. § 841 (drug trafficking +
guideline enhancement)
USSC review of § 924(c) eligible cases
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48% of eligible cases were black
56% of cases charged were black
64% of cases convicted were black
Seriousness of the Offense:
Crack Cocaine
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21 U.S.C. 841 – Threshold quantities for crack
100 times higher than for powder cocaine
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A more serious crime?
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Different form of ingestion, but . . .
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Associated with violent crime, but . . .
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no pharmocological difference
sold in poor, urban areas
Average Sentence
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Crack cocaine: 119 months
Powder cocaine: 78 months
Prosecutorial Discretion:
Substantial Assistance Reduction
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18 U.S.C. § 3553(e) – Authority to avoid mandatory minimum where
based on defendant’s “substantial assistance” and government
motion
§5K1.1 – Guideline Departure for “Substantial Assistance”
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1998 U.S. Sentencing Commission Study
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Definition of “substantial assistance” and policies to determine size vary
across federal districts
Realities of drug organizations
Prosecutorial discretion unlimited & unreviewable
“Legally irrelevant factors (e.g., gender, race, ethnicity, citizenship) were
found to be statistically significant in explaining §5K1.1 departures.”
Need for further study
Application of Rules:
Career Offender
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18 U.S.C. § 994(h) – Directive to set sentences “at or
near” the statutory max for 3rd “crime of violence” or
“drug trafficking offense”
§4B1.2
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Assigns defendants CHC VI
Sets offense level near the statutory max
2000 US Sentencing Commission Data
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1,279 Career Offenders
26% of all defendants were black
58% of career offenders were black
39% of all offenders were Hispanic
17% of career offenders were Hispanic
A Little Bit of Everything:
Noncitizens, Illegal Reentry, and §2L1.2
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Overstated seriousness:
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+16-level enhancement for a single prior conviction
4 criminal history points for a single prior conviction
Prosecutorial discretion: Fast Track
Disparate Impact of Neutral Rules
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No credit for time in immigration custody
No early release to halfway house
No early release for drug rehabilitation
Post-sentence custody awaiting deportation
So what can we do?
Where there’s a will, there’s a way.
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1986 – Anti-Drug Abuse Act (raised penalties for many drug crimes)
1994 – Congress directed the U.S. Sentencing Commission to report on
cocaine punishment policies in the federal system
1995 – USSC issued a report calling for a 1:1 ratio (lowering crack penalties
to powder level) and amended drug quantity table accordingly
October 1995 – Congress disapproved the guideline amendment (332 to
83)
October 1996-1998 – No commissioners reconfirmed; Chair Richard
Conaboy resigns
May 2002 – USSC recommended 20:1 ratio
May 2007 – USSC reduced penalties for crack by 2 levels, abandoning 100:1
ratio
December 2007 – Supreme Court: Sentencing courts do not have to follow
crack guideline (US v. Kimbrough)
December 2007 – USSC applied crack amendment retroactively over DOJ
objection
Early 2008 – House and Senate both held hearings on crack amendments
(1:1, 20:1)
January 2009 – Supreme Court: Seriously. Sentencing courts do not have
to follow crack guideline (US v. Spears)