Are There Racial Disparities in Sentencing?

The U.S. continues to have the highest incarceration rate of any country in the world as of 2020. The Sentencing Project notes that Black children born in 2001 had a one-in-three chance of serving time at some point in their life, while white children had a one in seventeen chance.

But once involved in the criminal justice system, are Black and other minority offenders also more likely to receive longer sentences than their white counterparts for the same crimes? This article looks at United States Sentencing Commission data on racial disparities in federal sentencing.

A Closer Look at Federal Sentencing Data

The United States Sentencing Commission tracks sentencing for all federal offenders. The data in this article shows average sentence length for various crimes based on race. Because different crimes carry different sentences, the data is broken down by type of crime. The USSC also has an “other” race category. This data is excluded, as it encompasses multiple races/ethnicities. The comparisons are between white criminal defendants, Black criminal defendants, and defendants who self-identify as Hispanic. For purposes of the USSC data, Hispanic is an ethnic category, not a racial one, but is included to provide additional comparisons.

Overall Life Sentences By Race

In 2019, Black federal offenders were twice as likely to receive a life sentence as white offenders. Black prisoners make up 21% of the total number of sentenced federal offenders but account for 48% of the life sentences. White prisoners are sentenced to life in numbers approximately proportional to their number of total federal offenders.

Common federal crimes that can result in a life sentence include:

• Drug trafficking
• Firearms offenses
• Murder
• Extortion
• Racketeering

Overall Sentencing By Race

There are disparities for some lesser offenses, as well. Black defendants receive the longest sentences on average, followed by white and Hispanic defendants. However, while this is true of overall sentence length, it does not hold true across all types of criminal offenses. For example, Hispanic offenders may perhaps be sentenced to less time on average because as a population group they are more likely to be involved in federal court for a lesser offense such as an immigration violation.

Courts and judges cannot use race explicitly when considering a sentence. The disparity must come either from other factors, such as previous criminal record or type of offense, or through conscious or unconscious bias.

One way to determine more clearly whether race is a determining factor is to break down average sentencing according to the type of offense. For example, someone being charged with murder or kidnapping will face a stiffer sentence than someone facing drug possession charges.

The below table separates the most common criminal charges according to race in 2019:

	White	Hispanic	Black
1	Drug Trafficking	Immigration	Drug Trafficking
2	Fraud/Theft/Embezzlement	Drug Trafficking	Firearms
3	Firearms	Firearms	Fraud/Embezzlement/Theft

Since immigration is the leading offense for the Hispanic population in the U.S., it makes sense that on average Hispanic offenders receive lower overall sentences compared to other demographics. Since both white and Black Americans are most likely to be convicted of drug trafficking charges, however, there are clearly other factors influencing sentencing than simply the type of offense.

Further Breaking Down Sentencing by Type of Offense

Drug trafficking is the most common offense for both Black and white offenders. According to USSC data, white and Black offenders convicted of drug trafficking are given comparable sentences, with Black offenders only slightly higher on average.

However, Hispanic offenders have an average sentence length significantly less than both white and Black offenders.

Offense Types Carrying the Longest Sentence

The federal offenses carrying the longest typical average sentences are murder, crimes involving sexual abuse, and kidnapping.

Average Sentence for Murder by Race

While Hispanic criminal defendants tend to receive lower prison sentences on average, this does not hold true for murder. As you can see in the below graph, Hispanic defendants received the longest sentences for murder on average at 272 months, or about 22.5 years. One thing to keep in mind in analyzing the data is that serious charges such as murder are rarer than other types of criminal offenses, meaning that a few outliers can affect the overall data. In other words, broad takeaways from the data on murder sentencing should be somewhat limited.

Average Sentence for Kidnapping by Race

Like murder, kidnapping is a relatively rare charge. In the below graph, we see that Black defendants received the highest average sentence for kidnapping by a significant amount. Again, however, the sample size is relatively low.

Average Sentence for Sex Abuse by Race

For sex abuse offenses, white defendants received the highest average prison sentence, with Black defendants receiving the shortest. Again, the disparity is relatively significant.

The above graphs show that racial disparities are not universally consistent but can depend on the type of offense. Simply put, while there are racial disparities, no race appears from the data above to receive longer sentences in any consistent pattern. To further explain why Black defendants receive the highest average sentence we need to look at more offense types.

Offense Types Carrying Lesser Sentences

If violent crimes see inconsistent racial disparities, what about lesser financial crimes? The data here is also somewhat inconsistent.

Average Sentence for Fraud/Embezzlement/Theft

There were no racial disparities seen in 2019 regarding certain financial crimes between white and Black offenders. Again, however, Hispanic offenders received on average lower sentences.

Average Sentence for Tax Crimes

That is not to say all financial crimes were equal. For tax crimes, Black offenders saw an average of three months’ more prison time sentenced than white offenders. The USSC does not have data regarding specific tax crimes, however, so we can’t see whether the type of tax crime is affecting results.

Possible Explanations for Racial Disparities In Sentencing

The American Civil Liberties Union has issued its own findings that “Black male federal defendants receive longer sentences than whites arrested for the same offenses and with comparable criminal histories.” The ACLU argues that “[t]hese racial disparities result from disparate treatment of Blacks at every stage of the criminal justice system, including stops and searches, arrests, prosecutions and plea negotiations, trials, and sentencing.” Any of the above could result in longer sentencing.

However, the data reveals that the story can be complicated, and may depend on the type of criminal offense charged. While Black offenders receive the longest sentences on average, that disparity can reverse depending on the specific criminal charge.

The Role of the Federal Guidelines in Racially Disparate Sentencing

Federal sentencing guidelines govern how much time an offender must serve according to the type of offense. These guidelines are meant to provide consistency across jurisdictions and reduce disparities. Historically, some of the explanation for the racial disparity in sentencing was U.S. law and sentencing guidelines. For example, mandatory minimum sentencing for crack cocaine was significantly higher than other controlled substances. A disparity in sentencing for drug offenses can impact communities differently. However, many of these laws have been amended. Congress passed the Fair Sentencing Act in 2010, for example, which made crack cocaine offenses more comparable to other controlled substances.

How a Prior Criminal Record May Affect Sentencing

One explanation for the racial disparities in sentencing is previous criminal history. The Federal Sentencing Guidelines require a stiffer sentence if the offender has a criminal history. Since Black Americans are more likely to be arrested and charged with a crime, they are also more likely to have a criminal history that would increase the sentence under federal sentencing guidelines. This is not to say that race plays any role in criminality, of course. But if the ACLU’s is correct in suggesting that Black Americans are more likely to be arrested and charged in the criminal justice system to begin with, that could explain some of the disparities seen in the data.

Racial Bias May Play a Role

The data does not discount the possibility of bias playing a role. The ACLU has suggested that the main reason for racial disparity in sentencing is because racial bias influences the type of charges prosecutors pursue. They argue prosecutors are more likely to charge a minority with a serious offense. According to a 2017 United States Sentencing Commission report, there is also a judge-driven disparity involving “non-government sponsored departures and variances.” In other words, judges are more likely to use their discretion to issue higher sentences to Black offenders even if the prosecution is not seeking one.

This article does not take a position on the extent racial bias can influence sentence length, or how that bias may affect a criminal defendant at any point in the justice system. These data points are provided for users to conduct their own research.

Efforts to Reduce Racial Disparities In Sentencing

While this article is not intended to advocate for or against any particular reform of the criminal justice system, it should be noted that there have been efforts to address perceived and actual racial disparities in sentencing. Advocacy groups such as the ACLU and others have alleged racial disparities in the criminal justice system and have suggested potential solutions. A few suggestions include:

• Amend or repeal mandatory minimum sentencing, which can lead to long prison sentences for non-violent offenses that disproportionately impact minority populations
• Cease all federal death penalty prosecutions
• Have the Department of Justice resume investigations focusing on problematic police behavior to reduce racial disparities in arrests

Still More Research to Be Done

This article does not look at every potential explanation for the racial disparity in sentencing. For example, socioeconomic factors such as income and education level can impact a person’s chances of becoming involved in the criminal justice system. Other factors could also influence sentence length. Nor is this article meant to suggest that any particular judge or jurisdiction is influenced by racial bias. It is meant to provide a brief summary of existing data on racial disparities in sentencing.