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People Of Color Receive The Harshest Punishments, And The Disparities Are Growing

Racial disparities in incarceration rates are dropping but still remain high. Racial disparities in sentence lengths are growing.

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

A new report from the Council on Criminal Justice takes a close look at the rates of incarceration for different racial groups. While disparities have gone down, Black and Latinx people continue to be incarcerated at far higher rates than whites.

The researchers looked at the rates at which people who identified as Black, Latinx, and white were in prison, in jail, on probation, and on parole. They then compared the rates between groups to calculate the disparities between Blacks and whites and Latinxs and whites for each category of correctional control and supervision. Disparities from 2000 data were then set against those from 2016 data.

Black people in 2016 (the most recent year for which Bureau of Justice Statistics figures are available) were still more than five times as likely as whites to be in prison and 3.8 times as likely to be in jail. Among all categories of Black and Latinx people under correctional control or supervision, only the rates of Latinx people on probation are equivalent to those of white people.

The decline in disparities has been driven in part by the fact that fewer Black and Latinx people are incarcerated or under supervision in 2016 than in 2000. Another factor has been an increase in the rates at which white people are going to prison or jail, or are on probation or parole. Finally, population growth among Black and Latinx people has been a factor since the rate is calculated using the total population of any group.

The total number of Black men in state prisons dropped by 9 percent from 2000 through 2016. That total, however, masks significant variation in incarceration for different categories of offenses. The number of Black men in prison for drug offenses has gone down by more than 50 percent and the number imprisoned for property offenses has gone down by 24 percent, according to the Council on Criminal Justice report. But the numbers of Black men in prison for violent offenses and public order offenses have gone up, shrinking the overall reduction to half of what it would have otherwise been.

This, in turn, is partly a function of long sentences getting longer and disparities in sentencing. Although Black people’s imprisonment rates have gone down, the length of prison sentences in prison continues to increase vis-à-vis those for white people. Put plainly, Black people are in prison for longer than white peers and the disparity is growing. This is especially the case with respect to sentences for violent convictions, according to the report.

The Marshall Project’s Weihua Li took a close look at this finding.

“For violent crimes,” Li wrote, “although both groups served longer from 2000 to 2016, the prison time for black people grew at a rate almost twice as fast, according to the report.” Experts Li interviewed, including an author of the Council on Criminal Justice report, attributed this to various factors:  the use of criminal history in sentencing which disproportionately affects people from communities most vulnerable to draconian policing and prosecution; the role of risk assessments, gang enhancements, and school zone enhancements; and pressure some prosecutors may feel to seek harsher sentences in cases involving violent charges at a time when there is pressure to use incarceration less for non-violent convictions.

Any effort to significantly cut the number of people in the U.S.’s state prisons (which hold the vast majority of people in prison) will require drastically reducing the number of people serving lengthy sentences for these violent convictions. The Council on Criminal Justice’s report and the Marshall Project’s reporting point out that Black people are affected by these sentences at rates far greater than white people.

As many states have enacted reforms to incarcerate fewer people, they have largely focused on people charged with nonviolent, low-level offenses. These reforms have succeeded in reducing the numbers of people in prison for these categories of offense. However, without reforms that have done the same for people serving convictions for violent crimes, the proportion of people in prison serving extremely long sentences has increased sharply.

According to the Sentencing Project, 1 in 9 people in prison are serving a life sentence. When “virtual life” sentences—sentences that exceed a person’s natural lifespan, guaranteeing they will die in prison—are included, that figure increases to 1 in 7. A sentence that is a rarity elsewhere in the world is commonplace in U.S. prisons. And this is the result of a historically recent shift. Ashley Nellis of the Sentencing Project wrote in a 2018 report that “there are more people serving life sentences than the entire prison population of the early 1970s.”

In its 2016 project “A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons,” the Urban Institute examined prison populations in 44 states and the District of Columbia. It found that the flood of extremely long sentences that begin with harsh sentencing laws in the 1970s and ’80s had led to a “stacking” effect, with so many sentenced for so long that prison populations grew rapidly and are now slow to go down.  Racial disparities in the prison system were intensified among those sentenced to the most time. In 35 of the 44 states examined, “racial disparities in prisons were starkest among people serving the longest 10 percent of terms.”

Black men, and especially Black men sentenced as youth were significantly overrepresented among those serving the longest sentences. Furthermore, “one in five people in prison for at least 10 years is a black man incarcerated before age 25.” People sentenced for crimes committed when they were very young were substantially overrepresented: “Nearly two in five people serving the longest prison terms were incarcerated before age 25, despite research that shows the brain is still developing through age 24 and that people tend to age out of criminal behavior.”

In death sentences too, racial disparities have worsened over time, even as the use of the death penalty wanes. The Intercept this week published a comprehensive data set that includes the cases of every individual sentenced in the era of the “modern” death penalty—since the Supreme Court decided Gregg v. Georgia in 1976, restarting the machinery of executions that had been halted by Furman v. Georgia, four years earlier. In accompanying articles, Liliana Segura and Jordan Smith examine the death penalty’s many facets and the ways it has fallen far short of what the Supreme Court said it was sanctioning. Today, the death penalty is in decline, both nationwide and in the pockets around the country that have been the main drivers of death sentences, and yet, Segura writes, “as we began to study the results of our data collection, we found indications that racial disparities are increasing as the use of the death penalty is decreasing.”

In Texas, where more people are sentenced to death than any other state, there are fewer such sentences each year. But “these sentences are exposing a stark reality about who still gets sentenced to die,” writes Segura. In the first decade after the Gregg decision, “people of color made up 51 percent of those sentenced to death. This percentage has grown to 75 percent in the past 10 years. Of just seven people Texas sent to death row in 2018, all of them were men of color.”