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Disparities in Sentencing

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 Disparities in Sentencing. In recent years, there has been increased focus on the issue of racial disparities in sentencing at the state and federal levels. Some studies suggest that the national "war on drugs" has further exacerbated existing disparities in sentencing within the federal and state criminal justice systems. Within the federal system, concern has been raised, in particular, in relation to (1) the use of mandatory minimum sentences generally; and (2) the disparity in mandatory minimum sentences between "crack" and "powder" cocaine.

In 1984, after more than two decades of debate and study, Congress enacted a substantial reform of federal sentencing, the Sentencing Reform Act. The central features of that legislation included a comprehensive statement of federal sentencing laws; appellate review of sentences; abolition of parole; and the creation of the U.S. Sentencing Commission to develop a detailed system of guidelines that would structure and direct the previously unfettered sentencing discretion of federal judges. Congress established the Sentencing Commission as an independent, permanent agency in the judicial branch of government. The Commission's mandate was to develop guidelines for federal criminal offenses that would bring greater certainty, honesty, and uniformity to sentencing, ensure just punishment, and promote crime control. One of the important goals of this reform was to reduce unwarranted sentence disparity.

At the same time the Sentencing Commission was developing, promulgating, and amending guidelines, Congress enacted a number of mandatory minimum penalty statutes, largely for drug and weapons offenses and for recidivist offenders. There has been much debate in the United States about the fairness and efficacy of the mandatory minimum sentencing scheme. Some commentators argue that the imposition of this "mandatory minimum" scheme unduly restricts the ability of federal judges to impose sentences that are particular to the defendant's case and promotes racial disparities in sentencing and incarceration, while others support it as necessary to ensure appropriate levels of punishment for serious offenses.

As noted above, in mandating minimum terms of imprisonment, one of Congress's goals was to eliminate unwarranted sentencing disparity for certain categories of defendants. To accomplish this, Congress identified these categories and designated appropriate penalties below which defendants were not to be sentenced. However, a recent report by the Sentencing Commission found that approximately 40 percent of defendants determined to exhibit behavior warranting mandatory minimum terms were sentenced below those indicated terms. Also, the Commission's study concluded that a greater proportion of Black defendants received sentences at or above the indicated mandatory minimum (67 percent), followed by Hispanics (57.1 percent) and Whites (54.0 percent). The U.S. Justice Department has worked vigorously to ensure that neither racial nor ethnic nor other improper discrimination occurs within the criminal justice system that might lead to racial disparities in sentencing and corrections. With respect to the federal criminal justice system in particular, the U.S. Deputy Attorney General has convened an internal Justice Department working group to examine racial disparities in the federal system, including questionable disparities in sentencing policies.

Mandatory minimum sentences have generated extensive litigation at the state and federal level, especially in recent years as Congress and state legislatures have increased the severity of mandatory penalties for drug and firearm offenses. Among the principal challenges to mandatory minimum provisions are contentions that they offend the Eighth Amendment's prohibition against cruel and unusual punishment and the Due Process Clause of the Fifth and Fourteenth Amendments. Criminal defendants have also challenged mandatory minimum sentencing schemes on equal protection, double jeopardy, and separation of powers grounds. Generally, these challenges have not succeeded.

Among the mandatory minimum penalties enacted by Congress in the late 1980s were those related to sentencing federal cocaine offenses. In establishing these mandatory minimum penalties, Congress differentiated between two forms of cocaine -- powder and crack (the commonly consumed form of cocaine base). Under current federal law, it takes one hundred times as much powder cocaine as crack cocaine to trigger the same mandatory minimum penalty. Thus, a person convicted of selling 500 grams of powder cocaine is subject to the same five-year mandatory minimum sentence as a person selling five grams of crack cocaine. This so-called "100-to-1 ratio" (five grams/500 grams) between crack and powder cocaine sentencing has been widely criticized -- in a recent report by the Leadership Conference for Civil Rights, by both Republicans and Democrats in Congress, and elsewhere -- as unfair and unjustified. Concern in this area is heightened in light of the fact nearly 90 percent of the offenders convicted in federal court for crack cocaine distribution are African-American while the majority of crack cocaine users is White.

In September 1994, the United States Sentencing Commission was directed to study and report to Congress on the 100-to-1 cocaine sentencing ratio. In 1995, the Commission issued a report criticizing the law and subsequently sent to Congress a recommendation to equalize the penalties for crack and powder at the lower, powder cocaine sentencing levels. The recommendation was accompanied by a proposed change in the federal sentencing guidelines that would have, for the purposes of the sentencing guidelines, equalized the penalties for crack and powder cocaine offenses. Because of concern about the devastating and disproportionate impact that crack cocaine trafficking was having on inner city communities, the Clinton Administration urged Congress to reject the recommendation of the Sentencing Commission. Congress agreed and invalidated the proposed new sentencing guideline. The legislation that rejected the proposed guideline also directed the Sentencing Commission to develop a second recommendation that would reduce but not eliminate the existing sentencing disparity.

In 1997, the Sentencing Commission issued a second report that again criticized current law and that recommended reducing the disparity between crack and powder cocaine sentencing policy. After an extensive study of the Commission's reports and recommendations, the Administration took the position that the 100-to-1 ratio should be changed; that existing law inappropriately targets lower-level crack offenders with significant mandatory minimum sentences and that such sentences fall disproportionately on African-Americans. The Administration proposed revising federal cocaine sentencing policy so that a conviction for distributing 25 grams (rather than five grams) of crack cocaine or 250 grams (rather than 500 grams) of powder cocaine would trigger the five year mandatory minimum prison sentence.

Others have suggested different solutions. Some have suggested equalizing penalties by raising powder cocaine penalties to the current level for crack (i.e., 5 grams = 5 years) or by reducing crack cocaine penalties as first suggested by the U.S. Sentencing Commission. However, to date, only one proposal has been the subject of legislative action. A proposal by Senator Spencer Abraham of Michigan to reduce the disparity between crack and powder cocaine sentencing by increasing the penalties for powder offenses was approved by the Senate earlier this year. There has been no legislative action.


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Equality Before Tribunals ] Discrimination by Law Enforcement ] Overrepresentation in the criminal justice system ] [ Disparities in Sentencing ] Capital Punishment ] Prisons ] Article 5(b) Security of Person ] Article 5(c) Political Rights ] Article 5(d) Other Civil Rights ] Article 5(e) Economic Social and Cultural Rights ] Article 5(f) Access to Public Accommodations ]
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Parent Level:
Introduction ] General Report ] Legal Prohibition ] U.S. Reservations, Understandings and Declarations ] Compliance with Specific Articles ] Article 1 - Racial Discrimination ] Article 2 ] Art 3 Condemn Racial Segregation and Apartheid ] Article 4 Eliminate Incitements or Acts of Discrimination ] Article 5 Equality Under the Law ] Article 6 Assure Effective Protection and Remedies ] Article 7 Adopt Measures ] Conclusion ]
[Race and Racial Groups] [Citizenship Rights]  [Justice and Race] [Patterns of Basic Needs] [Intersectionality Issues] [Human Rights]

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