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.
Judges are using their discretion to help white defendants more than black ones
After someone's convicted of a crime in federal court, the judge determines a prison sentence by consulting a set of federal guidelines. The guidelines consider a bunch of factors related to the defendant's criminal history and the seriousness of the crime, plug them into some complicated calculations, and spit out a recommended range for the prison sentence to fall into.
This study looked at how judges responded to those recommendations. What they found was not great. For pretty much every type of crime, white offenders who get a certain recommended sentence (under the guidelines) end up getting a shorter sentence than black offenders who get the same recommendation. And the difference between white and black sentences has grown since 2005.
How big the disparity is depends on the type of crime and how severe it is. For a relatively minor drug offense that doesn't involve weapons — something where the recommended sentence might be around two and a half years — a black man and a white man would actually get around the same sentence in 2005. In 2012, the black man would be sentenced to about two months longer than the white man would.
For a relatively minor crime that doesn't involve drugs but does involve weapons — something where the recommended sentence might be a little over four years — a black man would have gotten about five months longer in prison than a white man in 2005. In 2012, the black man would get a sentence over a year and a half longer than his white counterpart.
As judges get more discretion, this is becoming a bigger problem
The sentencing guidelines, like the name says, are supposed to be guidelines. But for decades, most judges followed them as rules, and rarely (if ever) gave out sentences that were higher or lower than the guidebook recommended. In 2005, the Supreme Court clarified that judges really could go above or below the recommended sentence if they thought it was appropriate for the case. (A second decision, at the end of 2007, clarified that judges were supposed to calculate the sentencing range recommended by the guidelines, but could then decide whether to follow it or not.) That's why this study's time period matters: It's looking at the era in which judges have had more power in sentencing.
It's become incredibly common for judges to hand out shorter prison sentences than the guidelines recommend. Over the summer of 2015, judges actually handed out "below-guideline" sentences in a majority of all cases (50.6 percent); they handed out "above-guideline" sentences only 2.6 percent of the time.
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.
To actually calculate whether judges are using their discretion to favor white defendants more than black ones requires some serious statistical analysis. But other researchers who've done that analysis, just like the authors of the new study, have found that racial disparities have persisted.
Interestingly, the researchers found that prosecutors' behavior didn't appear to change much over this time. The difference was because judges had more power to use their discretion, and they appear to have exercised that discretion to help white defendants more than black ones.
But giving judges less flexibility makes mass incarceration worse
The sad irony is that criminal justice observers have known this for a long time: The more that sentences are left up to a judge to determine, the more racial bias will come into play. This was a big criticism back in the 1960s and 1970s, when sentencing was so all over the place that a judge in California could sentence someone to a single day, or to years, for the same crime.
Reformers told legislators and governments that they needed to set clearer standards for how long a sentence should be for a given crime. One result was the development of the federal sentencing guidelines to begin with; another result was the use of mandatory minimum sentences that judges couldn't go below if they wanted to.
If you're familiar with mass incarceration, you know where this is going. Both of those policies have led to people going to prison for far longer than they used to, because stiff sentences were imposed across the board. And the length of sentences is one of the major factors in the explosion of America's prison population. That's why federal judges are beginning to move away from the guidelines, and why criminal justice reformers are calling for mandatory minimum sentences to be reformed or abolished.
This study (and other evidence that racial disparities in sentencing persist) shows reformers haven't escaped the terrible double bind they're in. Give the power in setting sentences to judges, and you choose a system where people who commit the same offense aren't treated the same way for it. Take that power away, and you choose a system where everyone is treated too harshly.
Of course, even when everyone is treated harshly by judges, black Americans end up suffering the most. That's because there's more to the criminal justice system than what happens in court; police decide whom to arrest, prosecutors decide whom to charge. Those factors feed black Americans into the system disproportionately, even before a judge lays eyes on them.
As depressing as this sounds, it also means the sentencing double bind doesn't have to be as much of a problem as it is. In a world where black people weren't overpoliced (and underpoliced), setting across-the-board sentences would actually improve equality.
On the other hand, if there weren't racial disparities in housing, employment and education that made it harder for black defendants to persuade a judge they could make something of themselves, judges might be just as likely to help black defendants as white ones. There's no right answer on sentencing, but that's because sentencing isn't the answer to begin with.