Thursday, February 9, 2012

Don't Blame Judges for Racial Disparity

That provocative title sums up the message of this new op-ed from FAMM President Julie Stewart, available at The Huffington Post.  

There's been a fight brewing for some time over whether the U.S. Sentencing Guidelines -- which apply to all 70,000+ federal offenders sentenced each year -- should be made mandatory once again, as they were before the Supreme Court ruled that mandatory guidelines violate the Sixth Amendment of the Constitution.  That case, U.S. v. Booker, made the sentencing guidelines advisory.  Ever since, opponents of judicial discretion have argued that advisory guidelines give judges too much power and lead to sentencing disparities (racial and otherwise).

But a new study shows that it is prosecutors, not judges, who are creating racial disparities in sentencing.  Julie explains how:
Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors. Prosecutors, already the most powerful players in the criminal justice system, get to choose not only who to charge and what crimes to charge, but they also get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree. If this extraordinary concentration of power in the hands of one group of federal officials does not convince the public to reject a restoration of mandatory guidelines, the findings of this comprehensive new study should.
"Racial Disparity in Federal Criminal Charging and its Sentencing Consequences" is the understated title of the incredibly important and timely study ... [It] found significant black-white disparities in the overall severity of initial charges, but saw the most dramatic differences when they examined charges carrying mandatory minimum sentences. Black men were on average more than twice as likely be charged by prosecutors with a crime that carried a mandatory minimum sentence as were white men, even after holding other factors constant....
Whereas some members of Congress are insisting that judicial discretion must be constrained in order to alleviate racial disparity, the opposite is likely true. The premiere restraint on judicial discretion is the mandatory minimum, which this study demonstrates leads to significant racial disparity in sentencing.
Again, the question seems to be:  Who do we trust to sentence?  Prosecutors, or judges?  Mandatory minimums and mandatory sentencing guidelines put sentencing power in the hands of unaccountable prosecutors.  Now we have data showing that racial disparities result from their use of that power.