Academic journal article Iowa Law Review

Deterring Racial Bias in Criminal Justice through Sentencing

Academic journal article Iowa Law Review

Deterring Racial Bias in Criminal Justice through Sentencing

Article excerpt

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 3 4 * the ACLU discovered that African Americans are 3.73 times more likely than White Americans to be arrested for marijuana possession nationwide,6 7 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 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 generations12 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- considerate sentencing statute implemented in Canada15 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, u 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 examples of ways that racial bias manifests itself in police and prosecutorial decision making.

A. Post-Slavery Rhetoric on Race and Crime

Although the concept of race (and its byproducts: racism, bigotry, and racial discrimination) has existed for approximately half a millennium,19 the American myth of the "black criminal" traces back only to the post-slavery era of the late 1800s, when an 1890 publication of prison data revealed a disproportionately high rate of imprisoned African Americans. …

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