Monday's two major shifts in how American criminal justice is meted out can be summarized in two charts. The first is from a study that shows how mandatory minimum sentences have resulted in much stricter penalties for people of color. The second shows how New York's stop-and-frisk policy overwhelmingly focuses on innocent African-American and Hispanic people.
In his speech before the American Bar Association's House of Delegates Monday afternoon, Attorney General Eric Holder argued for a reduction in mandatory minimum sentences. He pointed to one particular study as a rationale.
One deeply troubling report, released in February, indicates that – in recent years – black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. This isn’t just unacceptable – it is shameful.
The audience applauded loudly for that line. But the data is just as compelling as the rhetoric.
It comes from a report issued to Congress by the United States Sentencing Commission. It looked at sentencing during four distinct periods during which differing minimum sentence guidelines were in effect. And it includes the following graph and summary.
In that second cluster of bars is the data point: sentences for black males were 19.5 percent longer than those for white males. And, further, black males are much less likely — 20 percent — to get a sentence below the minimum range.
From the report:
[A]lthough sentence length for both Black male and female offenders and White male and female offenders have decreased over time, White offenders’ sentence length has decreased more than Black offenders’ sentence length. Additionally, while Black male offenders received sentences that were not statistically different from those of White male offenders when both groups received non-government sponsored below range sentences, Black male offenders have been at least 20 percent less likely to receive a non-government sponsored below range sentence in the first instance.
In other words, even with minimum sentencing guidelines, there exist disparities in treatment based on race. Holder continued:
Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.
Part of that problem was baked into minimum sentence guidelines. A 1999 This American Life broadcast described how the sentences for drug crimes — part of what Holder today called the "so-called" war on drugs — were based not on criminal science, but on politics. Eric Sterling was lead attorney for the House Judiciary at the time minimum sentences were developed by Congress.
The numbers that we picked in the Judiciary Committee, the 20 grams of crack cocaine, would have triggered a five-year federal minimum. The Republicans in the Senate dropped the 20 grams to five grams and raised the-- from 5 years to 40 years because the Republicans were going to be tougher.
There was, again, no sense of, it's not a large quantity of drugs from a consumption point of view. It's a very small quantity. And these are folks who have really no clear sense of the dynamics of the business enough to make a just determination.
The discrepancy, Sterling notes, also depended in part on the rural / urban divide. At the time, American cities were battling endemic crime and rampant drug trafficking.
That has changed dramatically. So much so that it undermines the city of New York's response to Monday's not-unexpected-but-still-dramatic ruling against the New York Police Department. In an editorial in the Wall Street Journal last month, police commissioner Ray Kelly argued that stop-and-frisk — the NYPD's policy of confronting people who appear to be suspicious under vague guidelines, often searching them — had helped drop crime statistics in communities of color since 2003. During the civil rights trial which concluded today, that data was not allowed as evidence. But it didn't really matter. This chart explains why the judge determined that the city's policy was unacceptable.
- That crime has dropped largely independently of the fluctuations of the number of stop-and-frisks. It began going up in 2011 — alongside more stop-and-frisks.
- The number of murders in 2012 dropped alongside the number of stop-and-frisks.
- In every year, almost all of the stop-and-frisks (red line) were of people who were innocent (yellow line) and / or a person of color (orange line). The gap between the red line and the orange line is the number of those stopped who were not black or Latino.
At a furious press conference — one drawing obvious comparisons to the attorney general's — Mayor Michael Bloomberg defended the NYPD's practices in moral terms. Saying that the decision was based on "flimsiness of evidence in a handful of cases," Bloomberg disputed claims of bias, saying "people also have the right to walk down the street without being killed or mugged." Kelly reiterated the bullet points in his Journal editorial (which was ably and completely rebutted at Salon). Asked if he would continue the practice while the city appealed the decision, Bloomberg replied, "Boy, I hope so, because I wouldn't want to be responsible for a lot of people dying."
The easiest rebuttal is that data above. But it's not the only one. Bloomberg also suggested that the finding came as the result of "a small group of activists," and that the Justice Departments of Clinton, Bush, and Obama never found fault with the city's policies.
That's not exactly true. In June, the Department of Justice suggested it might step in to oversee the NYPD — in a statement from Attorney General Eric Holder.