Sentencing Disparities

History

Before emancipation, slave owners were legally free to punish their slaves for any offense without intervention [Page 831]from the judiciary. This meant that punishment of blacks was generally inflicted on the body and that a conviction—or any legal process—was not necessary as a precursor to punishment. On the rare occasions when blacks were tried for their offenses—generally slaves whose alleged offenses affected the larger (white) community and free blacks—they were often subject to separate legal codes, especially in the South. The code that simply bore the state name was in fact only applicable to whites, and a separate code, often called “black codes,” was applicable to blacks. These codes mandated different punishments for the same offenses. Blacks were subject to some punishments that whites were not. For example, in Virginia, it was typical for slaves who ran away to be sentenced to castration or hobbling, while no such status and thus crime existed for whites and there was no crime for which whites could be sentenced to either of these punishments. In addition, prescribed punishments for many crimes were lighter for whites than for blacks. For example, Virginia decreed imprisonment for whites but death for blacks convicted of a variety of felonies, from buying or receiving a stolen horse to rape. In addition, blacks were tried in separate courts without juries, comprised of county justices and sometimes slave-owning assessors. One remnant of separate legal codes is that noncitizen individuals accused of criminal behavior are still subjected to a different set of laws than citizens accused of criminal behavior.

Contemporary Punishment

Today, most discussions about sentencing disparities focus on the apparent disjuncture between race-neutral law and racially disparate punishment outcomes. In other words, scholars investigate why, despite legal codes mandating that individuals with the same legal characteristics receive the same punishment, the effects of the race, class, and gender on individual outcomes remain. Early studies, from the 1920s to the 1970s, generally looked only at men convicted of felonies and tested for race and socioeco-nomic effects. These studies found that black men and unemployed men received more punitive criminal justice outcomes than white employed men. However, these studies used inadequate statistical methods and often contained methodological flaws, rarely controlling for legally relevant factors such as prior record or seriousness of offense. In the 1970s, many scholars reanalyzed the data from these earlier studies, this time controlling for legally relevant factors and using more sophisticated statistical techniques. These analyses showed that little if any discrimination existed. Further, when later studies added variables for prior record and offense seriousness, the effects of race and class often disappeared or lessened. As a result, many scholars rejected the “discrimination thesis,” arguing that what appeared to be effects of racial or class discrimination were actually the effects of legally relevant variables correlating with race and class, such as prior record.

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