The Federal Defenders Guidelines and Legislative Committees have released a fact sheet, available here, critiquing a recent Sentencing Commission report which concludes that racial disparities in sentencing have increased in the wake of Booker.
In November 2017, the Sentencing Commission released a report concluding that “the gap between the sentence lengths for Black and White male offenders [has] increas[ed]”post-Booker. Opponents of discretionary sentencing have cited (and misused) this finding to argue for mandatory sentencing regimes. The Federal Defenders’ fact sheet takes issue with the Commission’s failure to address some recurrent criticisms of the statistical model it uses to reach its conclusions. These include the Commission’s failure to account for the racially disparate impacts of (1) mandatory minimums, (2) prosecutors’ charging and bargaining decision, and (3) certain sentencing guideline provisions. As the fact sheet explains:
Racial disparity is a serious problem in the federal criminal justice system. Nearly 78 percent of federal defendants are non-White or Hispanic, and mandatory minimums are disproportionately charged against Black defendants. While many studies have shown that racial bias infects most aspects of human behavior (and is surely present among lawyers and judges), the suggestion that increased judicial discretion leads to greater racial disparity in the criminal justice system is simply wrong. Constraining judicial discretion only exacerbates unjust sentencing rules and biased enforcement and charging decisions.
Fact sheet at 1. The fact sheet concludes that “[c]alls to end the advisory system make sense only if the risk that judicial discretion causes unwarranted racial disparity outweighs the costs of a mandatory system. From all available data, it does not.” Id. at 5.