Race and Sentencing

Discretionary Sentencing and Race

In the 1987 U.S. Supreme Court case McCleskey v. Kemp, attorneys for the appellant brought attention to the fact that an 1861 Georgia statute specified a mandatory death sentence for the rape of a white woman by a black man, and a prison sentence of two to twenty years for the same crime committed by a white man. Under the same statute, the rape of a black woman was punishable by “fine and imprisonment at the discretion of the court.” A legislative intent to discriminate between both offenders and victims on the basis of race is clear. Although the statute was later repealed, statistical evidence suggests that race continued to influence rape sentences well into the twentieth century. From 1930 to 1964, Bureau of Justice Statistics (1995) data show that more than eight times the number of blacks (405) as whites (48) were executed following rape convictions. This difference cannot be explained by arrest statistics; that is, the number of black arrests for sex crimes was not eight times greater than the number of white arrests for such offenses. Although the majority of contemporary research on sentencing has failed to show such a definitive and direct relationship between race and sentencing, several contemporary sentencing practices have produced outcomes that demonstrate a similar degree of racial disparity.

Disparity in criminal sentencing means that individuals who commit the same or similar offenses receive different sentences upon conviction. The term is also used to describe situations in which legislation that appears to be race neutral produces sentencing results that affect one race more than another. Differences in sentencing outcomes across race, however, need not involve intentional discrimination in order to be recognized as disparate. The disparate impact of sentencing decisions on blacks versus whites in the United States is evidenced by the significant overrepresentation of blacks among correctional populations. National figures from 1998 indicate that blacks account for 35 percent of adults on probation, 49 percent of adults in prison, and 44 percent of adults on parole. A report issued by the Department of Justice notes that minority youths are at least six times as likely as their white counterparts to be arrested, held in jail, sent to juvenile or adult court for trial, and convicted; once convicted, they receive longer prison terms.

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