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Artwork by Maurice Scott via the Prison Creative Arts Project.

A good reason to do away with mandatory minimums?

ASK THIS | January 27, 2012

New research shows that racial disparities in federal sentencing can be traced back to the higher likelihood that prosecutors will charge blacks with offenses that carry mandatory minimum sentences. And one of the researchers -- a law professor at the University of Michigan -- writes that it may be easier to change the law than to change prosecutors.

By Sonja Starr

Questions for Congress:

Q.  Does learning about racial disparities in the use of mandatory minimum charges in any way affect your view on whether mandatory minimums should be reformed?

Q. Mandatory minimums have dramatically expanded over the past few decades -- is it time to reverse this trend?

Questions for the Department of Justice:

Q. What does DOJ do to monitor racial and other disparities in its law enforcement and prosecution patterns?

Q. What goes into prosecutors’ choices of charges, in cases where multiple options are available?

Q. What more could be done to reduce racial disparities in the choice of charges?

It’s well known that there are sharp racial disparities in U.S. incarceration rates -- in particular, black men are incarcerated at over six times the rate of white men. But why do these disparities exist -- is it simply because of different crime patterns, or is the justice system treating defendants of different races differently? Previous research into this question has focused mostly on the final stage of the justice process: judges’ sentencing decisions. But judges aren’t the most powerful players in the criminal justice system -- prosecutors are. Prosecutors have enormous discretion to decide whether and what charges to bring. And existing research tells us almost nothing about how they exercise that charging discretion, nor about whether their choices translate into racial disparities in case outcomes.

Along with economist Marit Rehavi, I decided to investigate those questions, and we released a working paper presenting our findings this month. We combined data from four different agencies, allowing us to trace cases from the arrest through the sentence and explore the interrelationships between the stages of the justice process. Our sample included about 58,000 federal cases, including property and fraud offenses, violent crimes, weapons offenses, and regulatory offenses. We developed several different scales to measure the severity of charges, based on comprehensive research into the governing sentencing laws and past sentencing practices for every federal crime.

We found significant black-white disparities in the overall severity of initial charges along all of these scales, but the most dramatic differences emerged when we looked specifically at charges carrying mandatory minimum sentences. Black men were on average more than twice as likely to face a mandatory minimum charge as white men were, holding arrest offense as well as age and location constant.

Previous research, including a major recent U.S. Sentencing Commission report, had shown that black defendants are more likely to face mandatory minimum sentences. But we hadn’t known whether that’s just because black defendants more frequently commit offenses covered by mandatory minimums, or whether prosecutors are bringing mandatory minimum charges more often against black defendants when doing so is a discretionary choice. Our research shows that it’s not just crime patterns -- prosecutorial decision-making is a key part of the explanation.

Those charging differences translated into sentencing differences. We found significant disparities in sentence outcomes for blacks and whites arrested for the same crimes. Overall, black sentences in our sample were almost sixty percent longer than white sentences. A big part of that gap is explained by differences in criminal records and in the arrest offense--once you control for those factors as well as gender, age, and district, the difference goes down to a little under ten percent on average. But that is still a highly significant disparity.

However, most of this otherwise-unexplained gap in sentencing goes away when you control for the severity of the initial charge, and especially when you control for whether the defendant was initially charged with an offense carrying a mandatory minimum. That is, most of the sentencing disparity that wasn’t already explained by arrest offense and other factors can be explained by the initial charging disparity, and especially by the choice to file mandatory minimum charges. So charging choices are a really important contributor to the ultimate disparity in sentences.

What conclusions can be drawn from the data? First, we are careful not to claim that prosecutors are discriminating on the basis of race. That’s one possible explanation for our findings, but a statistical study like this can’t prove deliberate or unconscious discrimination. All we know is that black defendants are getting charged differently in ways that aren’t explained by their arrest offense or the other variables that we were able to control for. There could be other factors at play besides racial discrimination, like socioeconomic status or differences in the nature of the cases that might not be apparent based on the recorded arrest offense.

We did rule out some plausible alternative explanations, though, to the extent possible within our data. For instance, not much of the charging disparity appears to be explainable by differences in criminal history. And we also considered whether the story could be all about guns, since gun charges made up a large fraction of our pool -- one possibility we considered was that the differences we found stemmed from more black arrestees being caught with guns, or more of them having criminal records that made gun possession illegal. But it turns out that you see very similar disparity patterns when you exclude cases with gun charges, so that can’t be the explanation either.

So what are the policy implications? The paper itself is meant to describe the problem statistically, not to propose solutions. However, I’ve been doing some thinking about what our results suggest, and I can offer my personal thoughts.

Most importantly, I think the racial disparities we found provide an important new reason that legislators should reconsider mandatory minimums. The disparities in the use of those charges are really stark, and it’s the charging choice that seems to explain the biggest share of the disparity in sentences -- unsurprisingly, since mandatory minimums tie judges’ hands in a way that other charging choices don’t.

You could say that what we need is not to change the laws but to improve their administration. But that may be easier said than done. It’s really hard to control prosecutors’ exercise of discretion. In fact, in 2003, the Department of Justice did its best to virtually eliminate prosecutors’ charging discretion -- Attorney General Ashcroft issued a memo ordering prosecutors always to bring the most serious charge that was readily provable. (In 2010, Attorney General Eric Holder rescinded it. ) The disparities we found here emerged despite the Ashcroft policy, which was in effect during the period we studied, suggesting that top-down efforts to enforce uniform standards are at best an incomplete solution.

So, while there may be improvements DOJ could make internally (for instance, by training prosecutors to be alert to possible racial patterns in charging), I think it would be unrealistic to expect disparities to be reduced that much via efforts at centralized control of prosecutors. Instead, I think legislators need to look closely at the prosecutorial tools that, for whatever reason, are used in the most racially disparate ways -- namely, mandatory minimums -- and think seriously about taking those tools away. 


Posted by calbengoshi
02/01/2012, 12:28 PM

One variable that is extremely important and that was not mentioned in this article is the relationship between the initial charges on which a person was arrested and the charges included in a subsequent grand jury indictment.

Most federal criminal prosecutions fall into one of two categories. Either they result from an initial arrest by federal or state law enforcement without any prior involvement by a prosecutor (typically referred to as a "reactive" prosecution) or they result from an investigation that is overseen by a prosecutor. In the former instance, the arresting agency makes the decision regarding what charges to file. After the arrest and the filing of those initial charges, the prosecutor then takes the case to a grand jury to get an indictment. In those instances, the prosecutor's discretion is somewhat limited because the members of the grand jury usually are made aware of the charges that initially were filed and may question a prosecutor if any of the charges initially filed by law enforcement are not included in the proposed indictment.

In a case where the investigation was overseen by a federal prosecutor, in most instances the prosecutor will present the case to a grand jury and get an indictment before an arrest is made. In those cases, and only those cases, the prosecutor has almost complete discretion to decide what charges to bring.

Mother of Inmate Keldren Joshua
02/11/2012, 11:39 PM

My Son, black was sentenced under the MMS, he was one of 4 defendants and the only Black. He had no criminal history and took a plea, the plea was 10years with and due no lack of crimnal history and acceptance the PD advised him that he would most likely do 7 years. After he signed the plea, the DA came back with the fact that my Son did have a criminal history, He had failure to appear on a traffic ticket! The took the failure to appear and his criminal history went from catagory 1 to 3..3 is 15yr to life. NON violant first offence. Meth. There were 3 counts the judge at sentencing drops to one count on the lower end of the catagory 15years. he just complete 5 and he will be 52 when he gets out. He has never been married and have no children and at age 52 the likely hood of that happening is null and void. it is riduclus how the law was fanagled to fit this crime. All three of the other defendand have been released from prision not serving more than 5years!!! they had private attys my son was given a PD. I couldnt afford a private atty, but i am told that when there are more than one defandant only one can have a PD and the others must have count appr private attys. I dont know if that is true, but appears to be so. NOne the less the Black man is still in prison with no possiblity of parole or early release of any kind.
I will speak and or support any organization that is opposeed to MMS. it wrong and is geonicide and deliberate!

Plea agreement
Posted by John
02/13/2012, 12:13 PM

A plea agreement is in fact at some level saying "guilty" It says at least I may or may not agree with some or all of the facts but I admit that the evidense you do have may not be good for me. Other than that you can option for trial. I have done it so I know. It is a weight and measure game. On the first hand I am facing x amount of years. Yikes! But I have been offered x amount of years to get this over. Innocent people do not plead guilty without other factors. The reason blacks get varying sentences cant really be figured out by some rich college student from NY. After all they only know what they have read. Here is a clue.... many arrests are made in cities. The same cities where jails exist. Large jails, that have to be paid for. Criminals = pay.
City kids are tougher and so they enter court with a tougher attitude. An attitude like 10 years aint sh...They plea out to quickly in most cases. If they held out longer the overall sentence would eventually come down and be more reasonable. When you are facing decades and are offered 1/3 of that, at that moment, that sounds right. Six months later when your case gets older it gets traded at a lesser cost. Rebellion in great numbers can lead to violence potentially. Here is the key however, the public pretenders, well they also work for the States. If your Boss wants something he usually gets it right. Quick quick keep them moving. In time, and in most cases, time you will owe anyway on your sentence, the offers in plea agreements come down. So don't rush slow down. The other things is that when you get arrested police officers in many cases, as they say, throw the book at you. They literally charge you with anything they can. They figure let the court figure it out. Rushing a case is never a great idea for a defendant unless you are going to cop to the plea. Figuring out what you are actually charged with and understanding the law even a slight bit can usually take some of the scruff away. So instead of facing 60 years on inflation you are really facing 24. Who do you think gets the better fare. And obviously Im not a lawyer but I have seen it first hand just the same. Get the information for yourself and don't plea to anything unless you understand what is actually being said. Mam sorry for you son however. Earlier I said public pretender. Not all court appointed lawyers are bad, they are called public defenders. It is possible he had one of the pretenders. Or, maybe he is guilty and the whole thing just stinks. Either way I hope you can get on gettin on. :)

Justice Not Served
Posted by Tamara
02/16/2012, 12:11 AM

Public pretender are private attorney it us we hat it is. My boyfriend in prison for something he did not do everybody on the case with him is either out are in their way out. 62 years for a fist fight in which no one was injured, hospitalized are killed. The system us crazy unfair.

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