Racial disparity and sentencing reform

The Atlanta Journal-Constitution today has this potent opinion column entitled “Fix sentencing guidelines: Move to end disparity along racial lines hasn’t worked” authored by John Lewis and Robert Wilkins.  In addition to providing effective background on the Booker/Fanfan story, the piece gives particular attention to the important issue of racial disparity in federal sentencing:

[R]ather than reducing unfair racial disparities in federal sentencing, the evidence shows that the guidelines made the problem worse. Just before Thanksgiving, the Sentencing Commission released a report assessing whether the federal sentencing system has achieved the goals of the 1984 reforms. It confirmed what many observers have long known: In the past 20 years, the federal prison population has gotten significantly darker.

The report also shows that while the average federal prison sentence for black offenders was about five months longer than for whites in 1984, by 2001, the average sentence for blacks was almost 30 months longer…. The report should serve as a catalyst for major discussion about the racial impact of federal sentencing policy, though, to date, it has received scant attention. Of course, data showing vast racial disparities do not necessarily prove that the federal sentencing system discriminates.

But a critical goal of the federal sentencing guidelines was to eliminate unfair racial disparities in sentencing, and the Sentencing Commission has now concluded that “the sentencing guidelines and mandatory minimum statutes have a greater adverse impact on black offenders than did the factors taken into account by judges in the discretionary system in place immediately prior to guidelines implementation.”

Racial disparity in incarceration has been a moral blight on America from the beginning days of our criminal justice system. That this disparity continues despite (and indeed because of) the guidelines highlights the need for serious thinking and action on the issue.

Regardless of whether the Supreme Court strikes them down in the Booker and FanFan cases, Congress should repeal the federal sentencing guidelines along with the mandatory minimum drug sentences. Then, Congress should allow the Sentencing Commission to draft new guidelines that treat the minority community fairly. The experiment with the federal sentencing guidelines has failed — it’s time to go back to the drawing board.