1. Dealing with Disparity in Federal Court Civil Rights and Sentencing 2009 JRCLS Conference Harvard Law School Benji McMurray Supreme Court Fellow February 13, 2009

2. Twin Pillars of Barbarism Unwarranted disparity Unwarranted disparity Uncertainty Uncertainty

3. The Breakfast Theory of Punishment “[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

4. Sentencing Reform Act of 1984 Creation of a Sentencing Commission Creation of a Sentencing Commission Mandatory Sentencing Guidelines Mandatory Sentencing Guidelines Limitations of relevant considerations Limitations of relevant considerations Sentences should punish, deter, incapacitate, and rehabilitate Sentences should punish, deter, incapacitate, and rehabilitate Overlay of Mandatory Minimums Overlay of Mandatory Minimums Individualized sentencing should avoid “unwarranted disparity” Individualized sentencing should avoid “unwarranted disparity”

5. So what matters at sentencing? Offense characteristics Offense characteristics Did the defendant use a weapon? Did the defendant use a weapon? How many victims were there? How many victims were there? How extensive was the harm or loss? How extensive was the harm or loss? Offender characteristics Offender characteristics Criminal record Criminal record The defendant’s background The defendant’s background NOT the defendant’s race, religion, or gender NOT the defendant’s race, religion, or gender

7. Did the SRA eliminate “unwarranted [racial] disparity”? “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.” Includes any facially neutral policy that disparately impacts minorities

8. Evidence of Disparity

10. African Americans African Americans 38% of prison and jail inmates 38% of prison and jail inmates 13% of population 13% of population Latinos Latinos 19% of prison and jail inmates 19% of prison and jail inmates 15% of population 15% of population Percent chance a male born in 2001 will spend time in jail: Percent chance a male born in 2001 will spend time in jail: African American – 32% African American – 32% Hispanic – 17% Hispanic – 17% White – 6% White – 6%

11. Evidence of Racial Bias?

13. “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.

14. Legally Relevant Characteristics and Structural Bias Arrest rates and prosecutorial discretion Arrest rates and prosecutorial discretion Seriousness of the offense Seriousness of the offense Application of facially neutral sentencing rules and policies Application of facially neutral sentencing rules and policies

15. Arrest Rates for Blacks Blacks are arrested more for violent crime Blacks are arrested more for violent crime 39% of arrests for violent crime 39% of arrests for violent crime 31% of arrests for property crime 31% of arrests for property crime Blacks are arrested more for drug crimes Blacks are arrested more for drug crimes 35% of drug arrests 35% of drug arrests 53% of drug convictions 53% of drug convictions 45% of drug offenders serving prison sentences 45% of drug offenders serving prison sentences

16. Bias in Arrest Rate? Blacks commit violent crime more frequently than whites Blacks commit violent crime more frequently than whites Victimization surveys suggest that arrest rates approximate crime rates Victimization surveys suggest that arrest rates approximate crime rates Racial profiling Racial profiling Blacks do not use or sell drugs more frequently than whites Blacks do not use or sell drugs more frequently than whites In 2006, African Americans constituted 14% of drug users according to U.S. Dept of Health & Human Services In 2006, African Americans constituted 14% of drug users according to U.S. Dept of Health & Human Services War on drugs War on drugs

17. Seriousness of the Offense: Biased Charging Decisions? 18 U.S.C. § 924(c) (heavy statutory enhancement for gun possession) 18 U.S.C. § 924(c) (heavy statutory enhancement for gun possession) 21 U.S.C. § 841 (drug trafficking + guideline enhancement) 21 U.S.C. § 841 (drug trafficking + guideline enhancement) USSC review of § 924(c) eligible cases USSC review of § 924(c) eligible cases 48% of eligible cases were black 48% of eligible cases were black 56% of cases charged were black 56% of cases charged were black 64% of cases convicted were black 64% of cases convicted were black

18. Seriousness of the Offense: Crack Cocaine 21 U.S.C. 841 – Threshold quantities for crack 100 times higher than for powder cocaine 21 U.S.C. 841 – Threshold quantities for crack 100 times higher than for powder cocaine A more serious crime? A more serious crime? Different form of ingestion, but... Different form of ingestion, but... no pharmocological difference no pharmocological difference Associated with violent crime, but... Associated with violent crime, but... sold in poor, urban areas sold in poor, urban areas Average Sentence Average Sentence Crack cocaine: 119 months Crack cocaine: 119 months Powder cocaine: 78 months Powder cocaine: 78 months

19. Prosecutorial Discretion: Substantial Assistance Reduction 18 U.S.C. § 3553(e) – Authority to avoid mandatory minimum where based on defendant’s “substantial assistance” and government motion 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” §5K1.1 – Guideline Departure for “Substantial Assistance” 1998 U.S. Sentencing Commission Study 1998 U.S. Sentencing Commission Study Definition of “substantial assistance” and policies to determine size vary across federal districts Definition of “substantial assistance” and policies to determine size vary across federal districts Realities of drug organizations Realities of drug organizations Prosecutorial discretion unlimited & unreviewable Prosecutorial discretion unlimited & unreviewable “Legally irrelevant factors (e.g., gender, race, ethnicity, citizenship) were found to be statistically significant in explaining §5K1.1 departures.” “Legally irrelevant factors (e.g., gender, race, ethnicity, citizenship) were found to be statistically significant in explaining §5K1.1 departures.” Need for further study Need for further study

20. Application of Rules: Career Offender 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” 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 §4B1.2 Assigns defendants CHC VI Assigns defendants CHC VI Sets offense level near the statutory max Sets offense level near the statutory max 2000 US Sentencing Commission Data 2000 US Sentencing Commission Data 1,279 Career Offenders 1,279 Career Offenders 26% of all defendants were black 26% of all defendants were black 58% of career offenders were black 58% of career offenders were black 39% of all offenders were Hispanic 39% of all offenders were Hispanic 17% of career offenders were Hispanic 17% of career offenders were Hispanic

21. A Little Bit of Everything: Noncitizens, Illegal Reentry, and §2L1.2 Overstated seriousness: Overstated seriousness: +16-level enhancement for a single prior conviction +16-level enhancement for a single prior conviction 4 criminal history points for a single prior conviction 4 criminal history points for a single prior conviction Prosecutorial discretion: Fast Track Prosecutorial discretion: Fast Track Disparate Impact of Neutral Rules Disparate Impact of Neutral Rules No credit for time in immigration custody No credit for time in immigration custody No early release to halfway house No early release to halfway house No early release for drug rehabilitation No early release for drug rehabilitation Post-sentence custody awaiting deportation Post-sentence custody awaiting deportation

22. So what can we do? Where there’s a will, there’s a way. 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)