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

Deterring Racial Bias in Criminal Justice Through Sentencing Zane A. Umsted  A BSTRACT : 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. P OST -S LAVERY R HETORIC ON R ACE AND C RIME ........................ 434 B. P OLICE D ISCRETION ................................................................ 436 1. Terry Stops ...................................................................... 436 2. “Driving While Black” ................................................... 437 C. P ROSECUTORIAL D ISCRETION ................................................... 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. T HE S ENTENCING C ALCULUS ................................................... 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. S ECTION 5H1.10’ S F ORBIDDEN F ACTORS ................................. 444 C. BOOKER AND THE “A DVISORY ” G UIDELINES ............................. 445 IV. ENLISTING JUDGES TO CORRECT AND DETER RACIALLY SELECTIVE PRACTICES ..................................................................................... 446 A. A M ODEL TO B UILD U PON : C ANADA ’ S S ECTION 718.2(e) .......... 447 B. T HE T WO -S TEP P ROPOSAL ....................................................... 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 officers have to choose which communities 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 Program compiles crime data from “city, country, state, tribal, and federal law enforcement agencies 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 political 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. 2014] DETERRING RACIAL BIAS THROUGH SENTENCING 433 to patrol and which persons to arrest. 8 Police officers are not the only criminal justice entities with discretionary power, however. Prosecutors also possess the discretion to choose which arrestees to charge and which punishment to seek. 9 And, despite the lack of a definitive report detailing racial disparities in this area (like the ACLU’s national arrest report), there are strong indications that prosecutorial discretion also results in disparate treatment of African Americans. 10 In light of the empirical data establishing that African Americans are more likely to be arrested for certain crimes, and the corresponding likelihood that, once arrested, they are more likely to be prosecuted, this Note advocates for an institutional safeguard to confront this problematic issue that plagues the enforcement of all crimes. 11 This Note argues that sentencing judges should be empowered to assess certain contextual factors—for instance, whether prosecutors in a jurisdiction tend to charge African Americans with higher-level offenses than White Americans engaging in the same illegal conduct—when making sentencing decisions, with the goal of issuing more-lenient sentences to individuals who have been subjected to implicitly (or explicitly) biased law enforcement practices. Part II provides a brief background of the racial biases that have plagued the criminal justice system for generations 12 and two areas of law enforcement discretion that have arguably perpetuated those biases. 13 Part III examines the Federal Sentencing Guidelines and addresses the obstacles that the Guidelines pose to this Note’s proposed sentencing model. 14 Part IV will dissect a thematically similar race- 8. See id. at 10 (describing the “War on Marijuana” as a “vehicle for police to target communities of color”); see also discussion infra Part II.B. 9. See ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION AND DEFENSE FUNCTION 3-3.8; 3-3.9 (3rd ed. 1993) [hereinafter ABA STANDARDS], available at http://www.americanbar.org/ content/dam/aba/publications/criminal_justice_standards/prosecution_defense_function.aut hcheckdam.pdf; see also discussion infra Part II.C. 10. See, e.g. , ALEXANDER, supra note 6, at 117–19 (compiling anecdotes and empirical data suggesting racial inequality in the various stages of criminal prosecution); Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion , 35 SEATTLE U. L. REV. 795, 806 (2012) (referring to empirical studies implicating race as a factor in discretionary prosecutorial decisions). 11. Although the ACLU data confronted racial disparities within the specific context of marijuana arrests, other comprehensive studies show that African Americans are treated more harshly by the criminal justice system in all crimes. See Michael Tonry & Matthew Melewski, The Malign Effects of Drug and Crime Control Policies on Black Americans , 37 CRIME & JUST. 1, 20–21 (2008) (observing that racial targeting by law enforcement officers “worsen racial disparities for drug and firearms offenses”); see also id. at 17 (statistical comparison revealing that racial disparities in criminal justice span all categories of crime and cannot be fully explained by racial differences in criminal involvement). Accordingly, this Note characterizes the ACLU report as an identifiable symptom of broad racial biases throughout the enforcement of all crimes nationwide. 12. See discussion infra Part II.A. 13. See discussion infra Parts II.B–C. 14. See discussion infra Part III. 434 IOWA LAW REVIEW [Vol. 100:431 considerate sentencing statute implemented in Canada 15 and will address the successes and failures of the Canadian statute before advocating for the proposed shift in U.S. sentencing that this Note argues will ameliorate the tendency toward racial bias. 16 II. RACE AND DISCRETION IN AMERICAN CRIMINAL JUSTICE Studies have shown that people subconsciously hold embedded stereotypes about many groups of people: from age groups to racial groups. 17 One such embedded stereotype leads people to more quickly associate African Americans—and particularly African American men—with criminal activity, reflecting Americans’ implicit and irrational fear of “black criminals.” 18 Understanding that racial biases exist makes the documented racial disparities in marijuana arrests, and potentially in charging decisions, less surprising, but no less problematic. This Part briefly examines the historical underpinnings of embedded racial bias in America and provides...