The figures aren’t pretty. Sixty percent of incarcerated Americans are people of color. Two-thirds of federal defendants convicted in Minnesota are minorities. Sentences received by white defendants tend to be at least 13 percent shorter than those meted out to those of color. And one result of those trends is teeming prisons.
Mass incarceration in the United States has been the custom for 50 years now, but some think it does more harm than good, especially for minorities. That was the topic of a recent panel discussion at the University of St. Thomas School of Law, part of a daylong conference co-sponsored by the school, the Minnesota State Bar Association, the Federal Bar Association, and the Minnesota Coalition of Bar Associations of Color.
The discussion was titled “Understanding the Impact: An Analysis of the U.S Sentencing Guidelines and Racial Disparities in Federal Sentencing Decisions.” It was moderated by Greene Espel partner Surya Saxena.
“We give longer sentences for lower levels of conduct,” said Amy Fettig, executive director of The Sentencing Project, a Washington, D.C.-based research and advocacy center pushing for decarceration and seeking to address racial disparities in the criminal justice system. “And the vast majority of those affected are people of color.”
St. Thomas law professor Mark Osler offered that lower-level criminals usually aren’t aware of the sanctions that might await them; the possibility of getting caught is more of a deterrent than the thought of possible sanctions. That’s in contrast to white-collar criminals, who almost always are aware of the chance they’re taking.
“Corporate criminals do a cost-benefit analysis that lower-level criminals don’t do,” he said. “If we really cared about deterrence, sentences would reflect that.”
Part of the reason for the problem of mass incarceration and racial disparities in sentencing is the common perception that longer sentences are automatically better for society, said Rachel E. Barkow, a professor at the New York University School of Law and former member of the United States Sentencing Commission.
“We’ve been trained to think retributively,” she said. “Media coverage of crime is just so bad. We hear only about the most salacious, gruesome crimes. Then bail reform is blamed for any subsequent crime. We’re conditioned to think that every criminal at every level deserves to spend years and years in jail.”
Fettig agreed, citing the “race baiting and fear mongering” that finds its way into media and political discussions of crime.
Crime in America began rising in the early 1960s, when baby boomers were reaching young adulthood — the age when one is most likely to commit crime. That generation also heralded a boom in recreational drug use, which led to the War on Drugs launched by the Ronald Reagan administration, Barkow pointed out.
“People visualized a scenario where we would get all the kingpins,” she said. “Instead we got the mules, the corner dealers, the ones with the least to gain. And they started getting the mandatory minimum sentences that were designed for the kingpins.”
Research has shown that while the use of illegal drugs is comparable between whites and African Americans, drug arrests are predominantly aimed at the latter, Barkow pointed out. She added that white defendants are 75 percent more likely to have their charges dropped, and more likely to be offered a plea deal.
The panelists agreed that the way society enforces laws adds bias to the process. When police, prosecutors and courts are given wider discretion, bias is more likely to creep in — and it’s usually the defendant who pays.
“The vast majority of jail sentences aren’t determined in court,” said Osler. “What police bring to prosecutors is what they prosecute. As a result, a lot of sentencing goes on behind closed doors.”
Another way sentencing guidelines tend to disproportionately affect minorities is that they make it far more likely that they’ll die in prison, said Fettig. During the first year of COVID, people in prison died from the virus at a far greater rate than those on the outside.
“Most people age out of crime,” she said. “Depending on what they’re in for, it doesn’t make sense from a public safety perspective to keep a person locked up into old age.”
Mass incarceration might lead to a small reduction in property crime, but little else, said Fettig. Those diminishing returns might be getting through to people, according to Fettig.
“More Americans are recognizing that spending trillions on mass incarceration doesn’t make us safer,” she said. “More communities are seeing that harsh sentences aren’t making us whole.”