Less Prison Time Matters: a Roadmap to Reducing the Discriminatory Impact of the Sentencing System Against African Americans and Indigenous Australians

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 37 No. 4

Less Prison Time Matters: A Roadmap to Reducing the Discriminatory Impact of the Sentencing System Against African Americans and Indigenous Australians

Mirko Bagaric
mbagaric@swin.edu.au

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LESS PRISON TIME MATTERS: A ROADMAP TO REDUCING THE DISCRIMINATORY IMPACT OF THE SENTENCING SYSTEM AGAINST AFRICAN AMERICANS AND INDIGENOUS AUSTRALIANS

Mirko Bagaric,^* Peter Isham,^** Jennifer Svilar,^*** Theo Alexander^****

Abstract

The criminal justice system discriminates against African Americans. There are a number of stages of the criminal justice process. Sentencing is the sharp end of the system because this is where the community acts in its most coercive manner by intentionally inflecting hardships on offenders. African Americans comprise approximately 40% of the incarcerated population yet only about 13% of the total population. The overrepresentation of African Americans in prisons is repugnant. Despite this, lawmakers for decades have been unable or unwilling to implement reforms which ameliorate the problem. This is no longer politically or socially tolerable in light of the groundswell of support for the Black Lives Matter movement following the killing of George Floyd.

This Article proposes a number of principled reforms that will immediately reduce the incarceration levels of African Americans and assist to overcome the systemic biases against this group. One of our key recommendations is for the immediate release from incarceration of all African Americans who have served three-quarters or more of their sentence. This reform builds on the early release concept underpinning the First Step Act, which

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commenced in December 2018, but applies it specifically to African Americans.

A number of other reforms are suggested to redress the wider causes of discrimination against African Americans in the sentencing system, including placing less emphasis on the prior convictions of offenders in the sentencing calculus and improving the educational outcomes of African Americans. Discrimination faced by the most socially and economically vulnerable groups in society is not limited to the United States. Indigenous Australians are overrepresented in prisons at an even higher rate than African Americans. We argue that the solutions to ameliorating the unfair burdens on African Americans are equally appropriate in the Australian context.

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CONTENTS

Introduction..............................................................................1408

A. The Problem: Disproportionate Criminal "Justice" Burden Inflicted on African Americans...........................1408
B. The Catalyst to Taking the Problem Seriously: Black Lives Matter and George Floyd......................................1408
C. The Acute Part of the Problem: Sentencing....................1414

I. The (Disproportionate) Mass Incarceration of African Americans and Indigenous Australians.........1417

II. Overview of the Sentencing System...............................1421

A. The United States' Sentencing Framework.....................1421
B. The Australian Sentencing Framework...........................1422

III. Reasons for the Mass Incarceration of African Americans and Indigenous Australians........................1424

A. Extent of the Problem......................................................1424
B. Judicial Unconscious Bias .............................................. 1427
C. Disproportionate Weight Accorded to Prior Convictions 1429

IV. Solutions to the Over-Imprisonment of African Americans and Indigenous Australians........................1430

A. Immediate Reduction of Incarceration Numbers: Release African Americans and Indigenous Australian Inmates Who Have Served Three-Quarters of Their Sentence...........................................................................1430
B. Long Term Solutions: 25% Reduction of Sentences, Reduced Weight to Prior Convictions, Negate Unconscious Bias, and Greater Emphasis on Education 1434

1. Twenty-Five Percent Reduction in Sentences for African American and Indigenous Australian Offenders...................................................................1434
2. Less Weight Accorded to Prior Convictions ............. 1438
3. Elimination of Implicit Bias by Judges......................1439
4. Improve Educational Outcomes for African Americans and Indigenous Australians.....................1441

Conclusion.................................................................................1446

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Introduction

A. The Problem: Disproportionate Criminal "Justice" Burden Inflicted on African Americans

African Americans have long been discriminated against in the criminal justice system. These communities are over-policed; they are over-charged by prosecutors; they are disproportionality killed by police officers; and they have the highest incarceration rate in the United States.¹ These injustices are well-known. Lawmakers have been either unwilling or unable to put in place reforms to ameliorate these problems. This is no longer tolerable.

B. The Catalyst to Taking the Problem Seriously: Black Lives Matter and George Floyd

The brutal murder of George Floyd by white police officer Derek chauvin provided the flashpoint for racism against African Americans and raised the Black Lives Matter movement to the forefront of the national psyche.² Following the murder of Floyd on May 25, 2020, demonstrations erupted in cities big and small throughout the United States as both veteran and new activists rallied

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against racial injustice.³ Although most of the demonstrations were peaceful, they cumulatively resulted in the greatest civic unrest in America since Martin Luther King, Jr. was assassinated in 1968.⁴ Protesters burned down a police precinct in Minneapolis, set fire to police cars in Los Angeles and Atlanta, and were sprayed with tear gas and rubber bullets by riot police in Tulsa and Madison.⁵

By June 2, the National Guard was deployed in at least twenty-eight U.S. states, while dozens of cities imposed mandatory curfews in an effort to combat looting, arson, and outbreaks of violence.⁶ Ironically, though perhaps unsurprisingly, the anger and rage that has spilled into American streets followed a two-and-one-half month period when the streets were near-empty, the country plagued by COVID-19. And African Americans, a population already subject to undisputed broad racial inequality, have been hit hardest. African Americans account for 13% of the U.S. population, but according to the Centers for Disease Control and Prevention (CDC)—as of June 2020—22% of those diagnosed with COVID-19 and 23% of those who have died from it are Black.⁷ "Some 44% of African Americans say they have lost a job or have suffered household wage loss" as a result of COVID-19, and "73% say they lack an emergency fund to cover expenses."⁸ The increased hardships that COVID-19 has thrust on the Black community have surely accelerated the urgency of the protests and the importance of the Black Lives Matter movement: "[I]t's either COVID is killing us, cops are killing us or the economy is killing us," remarked Priscilla

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Borkor, a 31-year-old social worker, during Black Lives Matter demonstrations in Brooklyn on May 29, 2020.⁹

Black Lives Matter was created in 2013 in response to the acquittal of George Zimmerman, a white volunteer "neighborhood watch" member who shot and killed Trayvon Martin, an unarmed Black teenager on his way home from a store, in February 2012.¹⁰ The phrase "Black lives matter" originated in July of 2013 in a Facebook post from activist Alicia Garza titled "a love letter to Black people," as an affirmation for an oppressed community concerned about Zimmerman's acquittal.¹¹ Over the last seven years, Black Lives Matter has evolved into a broad movement focused on criminal justice reform and related causes,¹² including ending mass incarceration, dismantling structural racism, and ending the police killings of African Americans.¹³ Though the activists appear committed to similar goals, there is not necessarily consensus on the means to achieve those goals. Some activists have taken a reformist position, successfully lobbying police officers to be equipped with body-worn cameras, making implicit bias training a requirement for law enforcement personnel and encouraging community policing.¹⁴ But other activists view those measures as not enough and have pressed for bolder reforms that curtail policing and police numbers and resources.¹⁵

More specifically, Black Lives Matter activists can be categorized into three groups. The first advocates for reforms aimed at increasing police department accountability and stringently regulating police use

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of force.¹⁶ The second concentrates on defunding police departments by rerouting public resources from law enforcement and funneling them instead toward social services that benefit Black communities.¹⁷ The third group aims to defund police departments as well, but views the defunding as a step toward abolishing policing altogether.¹⁸

Campaign Zero, a reform camp founded after the August 2014 protests in Ferguson, Missouri (where a white police officer killed a Black man during a physical struggle) and that is supported by and closely aligned with Black Lives Matter, has outlined a set of goals that fall within the first of the aforementioned three groups.¹⁹ According to co-founder Deray McKesson, reforms, such as increasing police body worn cameras, augmenting mental health resources for police officers, requiring implicit bias training, and employing more officers of color, "don't work" because they "don't actually result in fewer people being killed by police," and thus, Campaign Zero instead focused on strategies that both "reduce the power" and "shrink the role" of police departments.²⁰ One step is eliminating police union contracts, which arguably often "protect bad cops and prevent police chiefs and mayors from making...