Sentencing Disparity

Criminal laws, policies, and decisions often disadvantage people with low incomes, who are disproportionately people of color. Latinos and blacks are far more likely to be disadvantaged in the decision to incarcerate or not and young black and latino males receive more severe sentences than white males. This is often due to financial circumstances as black people are less likely to have the ability to pay bail and are jailed pending trial and less often can afford a private attorney. Black defendants who victimize whites tend to receive harsher sentences than white defendants who victimize other white people. Minority defendants also tend to be sentenced more severely for lower-level non-violent crimes. Latinos and blacks are more likely to receive a death sentence than white defendants.

A multitude of factors have contributed to create these disparities. These include pretrial detention, inadequate legal representation, and biased decisions by actors within the legal system (law enforcement, prosecutors, juries, and judges). Pretrial release often requires cash bail which disadvantages low-income people of color and increases the pressure to take a less favorable plea deal. White people who are economically advantaged can afford better legal representation and not overworked and under resourced public defenders who can’t dedicate much time to individual cases. White people are more likely to economically afford better legal representation and enjoy more vigorous legal defense, keeping them out of prison in contrast to people of color who are more economically disadvantaged.

Moreover, there are a series of laws that have exacerbated the disparities more than ever before even though they appear race neutral. During the war on drugs, sentencing laws were enacted that created mandatory minimums - a minimum sentence for a crime that does not take into account people’s individual circumstances. Additionally, prosecutors' broad discretion to pursue mandatory minimum sentencing causes a wide variety in the potential sentence for defendants who have committed the same crime. The three strikes law was also passed in the 1990s which severely increases the sentence for someone if they have previously committed two other crimes. Both mandatory minimum sentencing and the three strikes law disproportionately affect black Americans due to economic circumstances and legal system biases. Finally the War on Drugs led to the enactment of several laws that created crack-cocaine sentencing disparities and drug-free school zone laws that affect minority communities. Originally, the disparity in crack vs powder cocaine was 100-1 and it is now 18-1 (crack cocaine is primarily used by African Americans). Moreover, during the War on Drugs led to an increase in policing, especially in low-income communities of color, which consequently leads to an increase in incarceration.

These disparities don’t just impact the legal system but exacerbate racial discrepancies in health, education, employment, and housing.