Reducing Racial Disparities in Incarceration

The criminal justice system is said to be just that just. It is supposed to be based on the principle that it is making our society a just and safe place. Where the punishment fits the crime and all men as with any institution in America are treated equal. This assumption, this ideology about the American criminal Justice system is wrong.

The amount of racial discrimination that is in system is astounding. People (white people in particular) want to claim that those who are speaking out against this racist system are just playing the race card. When the numbers are in front of you, however, it is very difficult to get past the ugly truth of the matter. People of color, particularly African Americans, are more likely than any other racial group to receive harsher and longer sentences.


Whites are “the majority of the population and commit crimes at comparable rates to that of people of color,” yet people of color constitute 60 percent of the population in prison.[1] Illustrated another way, one in nine black men between the ages of 20 and 34 are in prison.[2] The statistics of the number of people who are in prisons are depicted in the table below. The diagram comes from The PEW Center on the States’ packet titled One in One Hundred: Behind Bars in America 2008. 

Death Sentences

In a recent article written by Lise Olsen the disparity between white offenders of capital crime and minority offenders of capital crime is discussed. Olsen reports that, “76 percent of the state’s “lifers” [probation for life instead of receiving the death sentence] are minorities, compared to 70 percent of death row inmates.”[3] This demonstrates the fact that although there is no evidence blacks commit capital crimes (or any kind of crime) at a higher rate than whites, there is evidence that a jury is more likely to convict a person of color for a capital crime.

“[O]ffenders are more likely to come from impoverished minority groups who sometimes get unfairly targeted by police,” says Marc Mauer the director of the Sentencing Project.[4]

The War on Drugs: Drug Offender Sentences

One of the biggest sources of unequal sentences comes from the “War on Drugs.” Karen Gotsch reports that the number of people in prisons “for drug offenses has increased more than 12-fold since 1980.”[5] Meaning that in 1980 there were 41,000 drug offenders in prison, and today there are 500,000.[6] The problem with implementing stricter drug offender laws and sentences is that not only does it not solve the problem, it unfairly punishes a very specific group of the population: the poor and the minorities especially African Americans).

The War on Drugs really took off in the 1980s, during the Reagan Administration. The Anti-Drug Abuse Acts of 1986 and 1988 were very important pieces of legislation that had dire consequences. These consequences remain even today. The laws called for harsh mandatory minimum sentences for drug possession. These laws also produced what has become known as the 100-to-one sentencing disparity. Mandatory minimums that were set for crack cocaine were the harshest offense ever adopted for a low-level drug offense.[7] A defendant charged and convicted of possessing 5 grams of crack cocaine resulted in a 5 year prison sentence (likewise 50 grams of crack resulted in a 10 year prison sentence).[8] Defendants were charged the same sentence if they were caught with 500 grams of powdered cocaine (5 kilograms equated to a 10 year prison sentence.[9] Same sentence, yet extremely different amount of drugs involved. This disparity is more than numbers. Crack cocaine is much cheaper than regular powdered cocaine. Therefore, it is more likely for a wealthy white person to do cocaine, and for a poor minority to do crack. As a result poor minorities were being punished extremely heavier than their white counterparts doing cocaine.

Federal government claimed that the purpose for these laws was to crackdown on high-level drug traffickers. However, research form the U.S. Sentencing Commission revealed that the people being arrested as a result of these laws were mainly the low-level traffickers (i.e. street-level dealers, lookouts, and couriers/mules).[10]

Consequences of the War on Drugs

In his article How the War on Drugs is Destroying Black America, John McWhorter describes how this “war” has harmed society, especially for young African American men. By the justice system making drugs illegal it increases the trafficking of drugs. It creates the need for an illegal market. Keeping drugs illegal increases their prices; this increases the financial opportunities for the individuals who get involved in their dealings. Illegal forms of income pay much better than any low-wage job. McWhorter argues that keeping drugs illegal “discourages young black men form seeking legal employment.”[11] This is because dealing drugs provides an alternate for struggling poor people, often Blacks and other minorities.

One of the main misconceptions about legalization of drugs is that making a drug illegal decreases drug use. This just is not true.[12] Another odd mentality held by most is that drug users and dealers need to be imprisoned. It seems as though society has a fear of drug use. McWhorter says that “fears of an addiction epidemic are unfounded,” and that society needs to come to grips with the idea that legalization will happen, just as Prohibition ended. [13]

The end of the War on Drugs has a number of benefits for all of society. McWhorter lists a few. For one it will end gang wars (or at least reduce them). His reasoning for this is that if there is no need to sell drugs then there will be no need to fight over turf. A second benefit is that it will lead to more “available” African American men, because they will no longer have the option of turning to dealing and will be able to hold legal jobs. Going along with this, the dropout rates of adolescence is predicted to decrease, because they will have to stay in school in order to make money. The drug trade will no longer be an option. Lastly, McWhorter claims that the relationship between young black men and the police will be less tense.

McWhorter ends his article with this statement, “[i]f we truly want to get past race in this country we must be aware that it will never happen until the futile War on Drugs so familiar to us now is a memory.”[14]

Contemporary Sentencing Reform

One section of the federal government is greatly involved in actively trying to close the sentencing gap between races. The U.S. Sentencing Commission was founded in 1984.[15] It studies the laws and policies that effect prison sentences. The Commission looks at how the laws are implemented and reports on their effectiveness through extensive research.

The U.S. Sentencing Commission has helped fight and advocate for sentencing inequality and still continues to do so today. Their main contributions to the reform include their research and their credibility. The Commission’s data collection has served as the foundation for educating law and policymakers in order for them to make informed decisions. [16]The data has also helped activists become well informed of the issues and statistics behind racial disparity. All of this data would really be useless, however, if it was not for The Commission’s credibility. As it is made up of federal judges and lawyers the Commission’s statistics were and are deemed as reliable information to both Republicans and Democrats alike.

On November 1, 2007, upon noticing the inequality that existed between such sentences, a change was made to the U.S. Sentencing Guidelines for crack cocaine prison sentences.[17] The change reduced the average drug offense for possession of crack cocaine by 15 months.[18] Later in December of that same year the Commission voted to make the guideline reductions retroactive. This decision was met with some opposition from Republican policymakers (mainly congressmen). Luckily, The Commission as a federal organization itself does not need congressional approval. Therefore the reduction was valid and still remains so today. The sentence reduction may not seem like a big deal, but by April 2011 16,433 prisoners received an average 26 month sentence reduction as a result of the change in sentencing guidelines.[19]

The Fair Sentencing Act

In Barack Obama’s presidential campaign one of his platforms was sentencing reform. The White House made the issue seem like a big priority once Obama was elected. The first big steps toward reform have already been taken in the President’s term. Legislation passed in 2010 was hoped to be the real turning point for many advocate groups, particularly the Fair Sentencing Act. The bill reduced the 100-to-1 disparity to 18-to1, and the mandatory minimum sentence was changed to a defendant needing to be in possession of at least 28 grams of crack (instead of 5).[20]

The Fair Sentencing Act passed by Obama was definitely a step in the right direction, but the act reduced the sentencing disparity between crack cocaine and powder cocaine possession it did not eliminate it. [21] The sentencing disparity still exists and “disproportionately impacts African Americans and entangles too many low-level drug offenders in the federal criminal justice system.”[22]


Although there have been reforms and steps towards progress made there is still much that remains to be done. The sentencing disparity still exists.

Two thirds of crack cocaine users are White or Hispanic, and they generally buy drugs from dealers of the same race. Yet, 79 percent of federal crack cocaine defendants in the year 2010 were Africans. The laws are not stopping drug use. They are ensuring that minorities, particularly blacks, are more likely to be sentenced and serve more time than any other drug offenders. This is why there is still a need for reform, even today. 

Other advocate groups are taking great strides in fighting for reform. The National Association for the Advancement of Colored People (NAACP), the American Civil Liberties Union (ACLU), and the Sentencing Project are all organizations that have dedicated work to ending sentencing inequality in America.


Solutions for fixing the sentencing disparities between whites and blacks include both reducing the gap and eliminating it all together. To do that requires changing sentencing guidelines and laws.

The U.S. Sentencing Commission has been a program responsible for this in the past and present. They research the effectiveness and fairness of sentencing policy and report it to the public. As stated earlier, they are a very legitimate source because they are made up of federal judges and lawyers. This is vital in getting the public, especially those in politics, to listen.  Specifically their data is used for activists and educating policymakers. This strategy has been and is very effective. It is time and resource consuming, but effective.

Bills such as the Fair Sentencing Act have been passed in congress to address the sentencing disparity in the system. While, met with some opposition for eliminating the disparity alto her, reducing and reforming the sentences was met with bipartisanship agreement. Both parties in congress seem to be in favor of fixing this injustice. This helps the issue a great deal. Having legislature that will help fix and maybe one day end inequality in sentencing is extremely important.

Frank Franklin II  /  AP: Supporters of six black teens initially charged with attempted murder march through Jena, La.

Another form of fighting sentencing disparity is protesting. In September of 2007 citizens protested the criminal (in)justice system in Jena, Louisiana.[23] They were protesting what became known as the “Jena Six.” This refers to the six African American adolescents unjustly charged with attempted murder. People flocked to Jena to show their support for the teenagers and their anger at the unequal system. This rally got the nation’s attention. Many were asking why the protest? This act of civil disobedience proved to be a great way to get the media and nations attention. It was able to shed light on a topic that many white Americans knew very little about half of the time. Acts of civil disobedience are what started the original civil rights movement. Maybe that is what we need now.

Systemic Racism in Unequal Sentencing

The American criminal justice system is filled to the brim with systemic racism at every step of the process. This includes sentencing. The system is racist because it (whether it will admit it or not) disproportionately and unfairly sentences people of color for more, longer, and harsher prison terms than whites. Meaning that blacks and other minorities of color are more likely to be committed for a crime, convicted of a crime, and given a prison term for a crime than whites who perpetrate the same crime.

Analysis and Recommendations

There are many efforts that need to be made in order to close the gap between sentencing disparities.  I feel that there are two approaches that should both be taken: short-term and long-term.

The short term method of addressing the sentencing gap is reducing it. We must keep reducing it until we can finally eliminate it. This approach can be frustrating because many policymakers in the government will not get behind bills that call for completely eliminating sentencing gaps. An example of this would be the debate on crack cocaine, versus powdered cocaine. Many senators and representatives, Republicans and Democrats alike, would not get behind the 2010 Fair Housing Act if it made the two drugs sentences the same. Thus, we had the compromise of reducing the disparity. While, this is frustrating for activists and supporters of eliminating the racist inequality, it is important to remember to take things in steps with this country. That does not mean, by any means, that we should settle for complacency or coming close to eliminating the gap. We should fight until it is completely eliminated.

To do this legal action and protestation must occur. Actively calling for bills to be passed like the Fair Housing Act is crucial for this cause. Legal action seems to make the most difference for prisoners, for better or worse. For example, in the Reagan Administration’s Anti-Drug Abuse laws had a drastic effect on how many people were sentenced and incarcerated. Even though the Fair Housing Act did not meet everyone’s full expectations, it did take a step in the right direction. It also did reduce around 3,000 prisoners’ sentences to an average of 26 months.[24] Whether it helps make the system more or less equal and fair varies, but it is evident that legal action is effective.

The other long-term route that could be taken is by making drug offense less severe all together. cannot be unequally sentenced if it is not illegal Some of the steps that should be made include legalization of drugs, or implementing alternative punishments such as probation or violations, rather than prison sentences to drug offenders.

Criminalization of drug users is one of the main driving forces behind mass incarceration and sentencing disparities. By giving low-level drug users and dealers felonies or punishments instead of violations or probation, we are perpetuating the racist system that is the criminal justice system. If drug offenses were less severe, it would help make our criminal justice system fairer and safety of the public would not be affected. McWhorter touched upon this very issue. Despite what most people believe about their crime system, imprisoning citizens who violate laws does not actually deter crime. It does not reduce crime rates. It does not keep society safer (other than locking away criminals). If we invested our efforts into more rehabilitative services, rather than just sticking drug addicts and offenders into jail where they are likely to go back to drug dealings and usage once released, we would be helping these individuals rather than just plain punishing them. We would also be spending our money much more efficiently.

The same thing goes for cracking down on drug use in general. Just because the government implements strict punitive actions against drug use does not stop people from using them or dealing them.

Legalization of drugs would also make the sentencing disparity disappear. As I said before, making drugs illegal does not deter people from using definitely does not stop people from selling them. If anything it increases the amount of deals, because it creates the need for an illegal market of drugs. Illegal means it is more expensive. Meaning the “business” pays well. It is a nice alternative for most people who are struggling to make ends meet.  Legalization is tricky, because it is extremely controversial.  But it would help stop unjust sentencing and lead to an overall better society.



News articles



The Sentencing Project


Related Topics:

Willie Aikens: baseball player whose career was destroyed by his addiction to crack cocaine, but more so by his unjust prison sentence.

Senator Dick Durbin: the Illinois (D) senator who originally proposed the Fair Sentencinc Act passed in 2011

 Jena, Louisiana the town held protests against criminal justice systems unequal sentencing in 2007.
 Death and Discrimination: Racial Disparities in Capital Sentencing
by Samuel R. Gross and Robert Mauro
No Equal Justice: Race and Class in the American Criminal Justice System
by David Cole
“The Pittsburg Tribune Review is reporting that Allegheny County councilman William Russell Robinson said on Wednesday that he wants to meet with the county’s president judge to discuss whether racial inequity needs to be addressed in the court system, a day after a judge claimed whites get better deals from prosecutors.”
Karen Garrison
“In April 2009, more than 21,000 members signed a petition urging members of Congress to end the disparity in sentencing for crack and powder cocaine.”
Washington – President Obama signed a law today designed to change the way that crack and powder cocaine are handled in court. (Follow up on the Garrisons)


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