RECOMMENDATION 5
Identify and alleviate unwarranted racial disparities in sentencing
The legitimacy of the criminal justice system depends on the trust people have in its fundamental fairness. Research shows that this sense of trust can be even more important to perspectives of legitimacy than the outcomes the criminal justice system produces. If people believe that the criminal justice system is unfair, then they may come to see its laws, policies, and the officials charged with administering them as biased and oppressive. When that happens, institutions lose their authority to govern through the consent of the people they serve.1
One of the most urgent problems facing the criminal justice system today is that the nation’s legacy of racism and the racial disparities that characterize its prison population have led many people to question whether fairness is achievable.2 In its guiding principles, the Task Force committed itself to addressing these issues, stating that its work and recommendations must “acknowledge and alleviate the impact of racial and other biases.”
The data are clear about the presence of disparities in long sentences: there are stark racial and ethnic differences in the shares of people who are sentenced to and serving 10 years or more in prison, especially when comparing Black people to White people. For instance, in an examination of data collected from all states and the Bureau of Prisons in 2020, The Sentencing Project found that 46% of the total number people serving life or sentences of 50 years or more were Black.3
Likewise, the Council on Criminal Justice found that, in 2020, Black adults were almost 30% more likely to receive a long sentence than White adults and three times as likely as White adults to have been released from prison after serving a long sentence.4
What does research say about the role the criminal justice system plays in causing or exacerbating these disparities? Are these observed disparities the result of different offending levels, different law enforcement practices, different criminal histories, the impact of seemingly racially neutral policies and practices, discriminatory biases, or other factors?
Over the last several decades, an expansive literature has investigated these questions.5 This body of research tends to use jurisdiction-level conviction data to isolate the influence of defendants’ race and ethnicity on length of sentence. The findings from this research are mixed. Some studies conclude that the defendants’ race and ethnicity had a clear effect on whether they received longer sentences.6 Others find that race and ethnicity played a smaller and statistically insignificant role and cannot solely account for the differences in sentencing length among different racial groups.7
While existing research explores how sentencing decisions affect these racial and ethnic disparities, it is important to emphasize what these data and findings can and cannot show. Records of convictions are often the most complete available data for examining sentencing disparities, but these records are limited by the fact that they can only speak to what is happening in specific jurisdictions at a particular point in time. As such, the data cannot provide stakeholders with a more dynamic and up-to-date assessment of current law, policies, and practice.8 More fundamentally, research that relies solely on conviction data cannot examine the influences that multiple pre-conviction factors and processes have on sentencing, including the race of courtroom actors, the race and ethnicity of the victim(s), the demographic composition of the community, the role of defense attorneys, and prosecutorial charging processes.9 Given that more than 90% of felony convictions result from plea bargains, stakeholders need a deeper understanding of the powerful and mostly invisible roles that these factors may play in shaping sentencing disparities.10
The Task Force recommends that legislators and policymakers take immediate and targeted action to eliminate discriminatory bias in who receives long sentences. As it outlines in its recommendation on criminal history enhancements, the Task Force also recommends that legislators and policymakers craft targeted changes to law and policy to alleviate the disparate impact that race-neutral policies can have on racial groups. And to ensure that the work of identifying and alleviating the harmful effects of racial and other disparities remain a key priority, the Task Force recommends that state legislators and members of Congress make data collection and analysis of racial and ethnic disparities a regular feature of its law and policymaking.
"The Task Force recommends that legislators and policymakers take immediate and targeted action to eliminate discriminatory bias in who receives long sentences."
Recommendation
Legislatures should require the collection, analysis, and publication of data that will enable lawmakers and other government leaders to identify and address racial and other unwarranted disparities in long sentences.
Implementation Steps
1
State legislatures, Congress, and sentencing commissions should require regular collection, analysis, and publication of jurisdiction-wide analyses of long sentences data, including by sentenced individuals’ race, ethnicity, and gender, the victim’s race, ethnicity, and gender, the crime involved, and the judicial circuit where their sentence was imposed.
- Authorities should require collection and analysis be done by a state agency, such as a state’s sentencing commission, state statistical analysis center, or by an external group, such as a state university.
2
State legislatures, Congress, and sentencing commissions should develop and consider proposals to alleviate unwarranted disparities in long sentences. Topics may include the influence upon time served of policies and practices such as judicial reduction of sentences, sentence credit awards, parole release decisions, and “second look” processes.
3
State legislatures, Congress, and sentencing commissions should develop and require that “demographic impact statements” that provide legislators, policymakers, and the public estimates of proposal’s potential effect on sentenced people based on their race, ethnicity, or gender, and require that such statements accompany proposals to create new long sentences.11 These statements should include analysis of base offending rates, arrest rates, criminal histories, and other legal elements of sentencing.
Demographic Impact Statement
The Task Force borrows the term “demographic impact statement” (DIS) from the American Law Institute’s 2017 update to the Model Penal Code’s section on sentencing.12 Just as legislators frequently use notes or statements to examine estimated implications of proposed legislation on areas like fiscal or environmental impacts, the purpose of a DIS is to provide an analysis of how proposed sentencing legislation would impact racial and ethnic minorities. The use of the DIS is a relatively new development. In 2007, Minnesota’s sentencing commission created an early version, and several states have since created different models of these mechanisms in statute, including Iowa, Connecticut, Oregon, and New Jersey. There is anecdotal evidence DIS analyses have been effective at informing legislative decision-making, but the Task Force is not aware of any formal evaluations of their impact.13
