Deterring Racial Bias in Criminal Justice Through Sentencing

• Author: Zane A. Umsted
• Position: J.D. Candidate, The University of Iowa College of Law, 2015; B.A. Cinema and Communication Studies, The University of Iowa, 2011
• Pages: 431-453

431

Deterring Racial Bias in Criminal Justice

Through Sentencing

Zane A. Umsted

ABSTRACT: In 2013, the American Civil Liberties Union (“ACLU”)

published a report revealing stark racial disparities in the national

enforcement of marijuana laws. The report suggested that police officers often

use their law enforcement discretion to selectively patrol predominantly

African American communities. This Note examines this and other methods

by which police officers—and prosecutors—can, and frequently do, use their

discretionary powers in a racially selective manner. Because the criminal

justice system currently provides little institutional protection against

discriminatory exercise of police and prosecutorial discretion, this Note

proposes a two-step revision to federal sentencing practices to empower federal

judges to combat racially biased law enforcement. By removing a provision

from the Federal Sentencing Guidelines and adding a component to

presentence reports, sentencing judges will gain the discretion necessary to

issue lighter sentences to offenders subjected to racially biased law enforcement,

which will effectively limit and deter racial bias in the future.

I. INTRODUCTION ............................................................................. 432

II. RACE AND DISCRETION IN AMERICAN CRIMINAL JUSTICE ............. 434

A. POST-SLAVERY RHETORIC ON RACE AND CRIME ........................ 434

B. POLICE DISCRETION ................................................................ 436

1. Terry Stops ...................................................................... 436

2. “Driving While Black” ................................................... 437

C. PROSECUTORIAL DISCRETION ................................................... 439

1. To Charge or Not to Charge ........................................ 439

2. Offense Levels and Mandatory Minimums ................. 440

III. SENTENCING UNDER THE FEDERAL SENTENCING GUIDELINES ..... 442

A. THE SENTENCING CALCULUS ................................................... 443

 J.D. Candidate, The University of Iowa College of Law, 2015; B.A. Cinema and

Communication Studies, The University of Iowa, 2011. A big thank you to the Law Review editors

and Iowa Law faculty who provided their insight on this Note.

432 IOWA LAW REVIEW [Vol. 100:431

B. SECTION 5H1.10’S FORBIDDEN FACTORS ................................. 444

C. BOOKER AND THE “ADVISORY” GUIDELINES ............................. 445

IV. ENLISTING JUDGES TO CORRECT AND DETER RACIALLY SELECTIVE

PRACTICES ..................................................................................... 446

A. A MODEL TO BUILD UPON: CANADA’S SECTION 718.2(e) .......... 447

B. THE TWO-STEP PROPOSAL ....................................................... 449

1. Eliminate Section 5H1.10 ............................................ 449

2. Include Arrest and Prosecution Circumstances in

Presentence Reports ..................................................... 450

V. CONCLUSION ................................................................................ 452

I. INTRODUCTION

Criminal justice has a race problem. In June 2013, the American Civil

Liberties Union (“ACLU”) published a report revealing a gross racial disparity

in marijuana arrests.1 After analyzing data from the Federal Bureau of

Investigation’s Uniform Crime Reporting Program,2 the ACLU discovered

that African Americans are 3.73 times more likely than White Americans to

be arrested for marijuana possession nationwide,3 despite nearly equivalent

marijuana usage between African and White Americans.4 And the racial

disparity appears to be growing: “[r]acial disparities in marijuana possession

arrests have increased in 38 of the 50 states . . . over the past decade.”5 Like

earlier phases of the War on Drugs, which also disproportionately affected

African Americans,6 the ACLU report suggests that the “War on Marijuana”

has similarly become “a war on people of color.”7

The ACLU report largely attributes the racial disparity in marijuana

arrests to the discretion that police office rs h ave to ch oos e wh ich com muni tie s

1. AM. CIVIL LIBERTIES UNION, THE WAR ON MARIJUANA IN BLACK AND WHITE 9 (2013), available

at https://www.aclu.org/sites/default/files/assets/100413-mj-report-rfs-rel1.pdf [hereinafter ACLU].

2. The FBI’s Uniform Crime Reporting Pr ogram compiles crime data from “city, country,

state, tribal, and federal law enforcement agen cies to present a nationwide view of crime.” FED .

BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTING HANDBOOK 1 (2004), available at http://

www2.fbi.gov/ucr/handbook/ucrhandbook04.pdf.

3. ACLU, supra note 1, at 17. In Iowa and the District of Columbia, the jurisdictions where the

disparity is most severe, African Americans are over eight times more likely to be arrested. Id. at 18.

4. Id. at 21 (“In 2010, 14% of Blacks and 12% of whites reported using marijuana in the

past year; in 2001, the figure was 10% of whites and 9% of Blacks. In every year from 2001 to

2010, more whites than Blacks between the ages of 18 and 25 reported using marijuana in the

previous year.”).

5. Id.

6. See MICHELLE ALEXANDER, THE NEW JIM CROW 40–58 (2012) (discussing the politi cal

background of the War on Drugs and the racialization of crack cocaine); see also discussion infra

Part II.A.

7. ACLU, supra note 1, at 9.