Race and Ethnicity

Judges often have considerable flexibility in sentencing convicted offenders. People who commit the same crimes do not necessarily receive the same sentences upon conviction. Sentencing decisions are often based on the seriousness of the crime, the offender's past criminal record, and information provided by prosecutors, defense attorneys, victims, and probation officers. Other factors outside the immediate nature of the case sometimes influence sentencing as well, such as employment record and family stability.

Like criminal laws, sentencing practices were racially discriminatory in the nineteenth century. Just prior to the Civil War, an 1861 Georgia law specified a mandatory death sentence for rape of a white woman by a black man. A white man raping a white woman could receive a sentence of two to twenty years. Rape of a black woman had no mandatory sentence.

Black rape offenders were executed at a much higher rate than white offenders, and this trend continued well into the twentieth century. Execution rates far exceeded arrest rates. Various efforts were made to take the racial factor out of sentencing decisions. For example, in 1987 U.S. Federal Sentencing Guidelines were issued prohibiting the reference or consideration of race or ethnicity during sentencing.

Sentencing rates for black Americans, however, still exceeded their 12 percent proportion of the general U.S. population. Studies in the 1980s and 1990s showed distinct patterns in sentencing regarding racial categories. For most felonies minorities had a higher incarceration rate, especially those with prior arrest records. They also received harsher sentences for lesser crimes. Whites would often receive probation and blacks incarceration. In 1998 black Americans represented 35 percent of the adults on probation, 49 percent of the adults in prison, and 44 percent of the adults on parole.

A minority youth had a six times greater chance as a white youth for being arrested, convicted, and sentenced to jail or prison. A study in California showed that whites charged with a felony were more likely than blacks or Hispanics to have charges reduced or dismissed. Of the first-time offenders in San Francisco, the courts sentenced 4 percent of the white offenders to state prisons, 7 percent of black offenders, and 11 percent of Hispanic offenders.

Efforts to make sentencing more consistent through stricter sentencing guidelines produced little change. Black offenders who murder a white victim are still more likely to be given the death penalty than for murdering a black victim. Prosecutors can still greatly influence sentencing outcomes by deciding what charges to bring against an offender. In the mid-1990s blacks were still eight times more likely to be incarcerated than whites. In 1994 there were 1,432 blacks incarcerated per every 100,000 black residents compared to 203 whites per 100,000 white residents.