In the federal court system, the Sentencing Commission sets guidelines in order to reduce sentencing disparities. These guidelines provide judges with a mathematical formula that dictates the maximum and minimum lengths of a prison term. The range is determined by a combination of the defendant's charges and past criminal history. The judge is allowed to consider other factors in order to reduce the range of an individual's sentence. These factors are called downward departures and include cooperating with law enforcement, first-time offender (aberrant conduct), accepting responsibility for the crime, and even for having an excellent employment history.
Despite the Sentencing Commission's attempts to reduce sentencing disparities, there is still a major problem. According to the commission's report, black males receive sentences that are 20% longer than those received by white males convicted of similar crimes. Since we know this is an unfair result, how about a downward departure of 20% for the sentences imposed on black males?
Some argue that race should not be used as a factor in sentencing, and the guidelines back up that point of view. They specifically prohibit a judge from considering race when granting a downward departure. However, we know, through the commission's statistical data, that race is implicitly factored into sentences. There are many complex reasons for this, including that the factors for downward departures inherently favor white defendants and the possible implicit biases of judges cause black defendants to receive sentences at the upper end of the sentencing range, while white defendants receive sentences at the lower end. Therefore, a rule to counter this unfair treatment seems to be within the spirit of the commission's congressional mandate to reduce the disparities in sentencing.
This proposal should have bipartisan support. Democrats support programs like affirmative action, which considers racial disparity in college applications, and Republicans tend to support using race when profiling individuals at airports or in stop-and-frisk programs, if there is statistical data to support their policy. We know that black men are receiving 20% longer sentences than white men who commit the same crimes. There is an easy way to fix this issue that is already built into the system. The Sentencing Commission, or Congress, should allow a downward departure of 20% to the sentences of black males in order to compensate for the disparity in sentencing.
I am not suggesting that this is the only solution to the problem, but I think it is important to have the discussion. Given that we know sentencing is unfair in our federal court system, we should try different strategies to fix it.