Criminal Sentencing Policies Disproportionately Hurt Black Americans, Mauer Says

November 6, 2007

U.S. criminal justice policies over the past few decades have unfairly affected black Americans, charged Marc Mauer, executive director of The Sentencing Project, during a talk to students Oct. 30 at the Law School.

YinMauer was invited to speak following the recent Jena 6 controversy, in which racial tensions in a Louisiana high school erupted in violence. Like the Rodney King and O.J. Simpson spectacles, such cases raise valid questions about the justice system, said Mauer, but tend to obscure the fact that a disproportionate number of African-Americans are incarcerated every day.

According to Mauer, 30 to 40 percent of those incarcerated for violent crimes are African-Americans, who represent only 12 percent of the total population. In terms of criminal justice, "We've experienced a lot of progress, Jim Crow is gone, yet an ethnic disparity still exists," Mauer said.

In the past few years, we've seen "the full impact of the 'get tough' movement to toughen up on crime," Mauer said. The United States is the world leader in incarceration, he added, with five to eight times more incarcerated citizens than other industrialized nations.

"Over the last 20 years, the war on drugs has been the most significant policy change," Mauer said. Unlike murder, rape, and robbery, which are all criminal justice issues, explained Mauer, drug abuse can be a criminal justice issue, a public health issue, or even a family issue.

Communities with resources don't call the police to arrest kids with drug problems, but instead call treatment programs and "throw money at the problem," he said. Meanwhile, low-income communities are more likely to call the police to deal with drug abuse.

Another issue contributing to the racial disparity in the criminal justice system is the harsh punishment for possession of crack cocaine. According to Mauer, possessing five grams of crack cocaine — considered more prevalent in low-income communities — comes with a mandatory sentence of five years in prison. To receive the same sentence for possessing cocaine in powder form would require 500 grams.

Mauer added that this has caused "an enormous shift in federal law enforcement." Officers used to focus their attention on catching large-scale, "kingpin" drug dealers. Since the laws regarding crack cocaine were enacted, 60 percent of drug arrests involve low-level offenders.

School-zone drug laws have also had an effect on the racial disparity, Mauer said. "If you are caught selling drugs within 1,000 feet of a school zone, you will experience a mandatory or enhanced penalty," he said.

The problem with this law, he explained, is that there is a difference between selling drugs to children at school and a 3 a.m. drug deal between consenting adults; however, the law makes no such distinction. There are very few places in cities, Mauer added, that are not within 1,000 feet of a school zone, so "urban offenders and more subject to the penalties than suburban."

Finally, Mauer cited the "three strikes law" as a cause of racial strife in the criminal justice system. In California, if convicted of a third offense, an individual faces 25 years to life in prison, no matter how insignificant the crime.

"Any time you're basing sentencing on prior records, people of color are more likely to have a prior record," and are more likely to receive a maximum sentence, he said.

In the last few decades these policies have had at best a modest impact, Mauer suggested. "If putting people in prison makes a safe society, we should have the safest society in the world."

Mauer stressed that in spite of all the problems these policies have created, "there are some signs of hope and change on the horizon." For example, starting Nov. 1, those convicted of possessing crack cocaine will serve 15 months fewer.

In addition, there is "a movement in the criminal justice field trying to divert people to treatment [for drug abuse] rather than incarceration," he said.

What happened in Jena is atypical, he concluded, but it's important to get across the fact that racial issues extend further than people think.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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