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U.S. Sentencing Commission Report: Racial Disparities Persist

by Derek Gilna

In a November 2017 report, the U.S. Sentencing Commission (USSC) found that despite the avowed purpose of the federal sentencing guidelines to promote sentencing uniformity across geographic and socio-economic lines, black defendants continue to receive longer sentences for similar offenses than whites. The report controlled for factors such as criminal history, age, education and citizenship.

According to the Commission, “Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied.”

A 2010 USSC report using similar metrics also found sentencing disparities: “Among other findings, the analysis showed that Black male offenders received longer sentences than White male offenders, and that the gap between the sentence lengths for Black and White male offenders was increasing.”

The Commission has conducted similar studies since the 2005 Supreme Court decision in Booker v. Washington, which made a judge’s adherence to the sentencing guidelines advisory rather than mandatory.

The 2017 report, which was based on “multivariate regression analyses,” noted that one source of racial disparities in sentencing was the federal government itself, due to how it grants sentence variations and reductions. “Black male offenders were 21.2 percent less likely than White male offenders to receive a ... downward departure or variance,” the report said. “Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a ... departure or variance.”

However, the study also found that while “there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, ... there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.”

Of course, under the sentencing guidelines, defendants with more extensive criminal histories, or convictions for violent offenses, generally receive longer sentences – but the USSC report noted that, based on data for fiscal year 2016, “An offender’s past criminal violence [was] not a statistically significant predictor of the sentence imposed for a federal offense to any extent beyond the contribution it makes to the offender’s final sentence imposed ... [based upon] the criminal history score.”

Other explanations have been advanced to explain racial disparities in sentencing. According to, “A 2014 study published by the University of Michigan Law School, for example, found that prosecutors’ initial charging decisions were a major driver of racial disparities in sentencing: All else held equal, black arrestees were 75 percent more likely to face a charge with a mandatory minimum sentence than white arrestees.”

As other factors may be involved, the USSC warned that its report “should be interpreted with caution and should not be taken to suggest discrimination on the part of judges.”

The USSC report also indicated that female offenders of all races received significantly lower sentences than male offenders convicted of similar crimes – a trend that has remained consistent since the Commission’s 2010 report.



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