New Report: Three Causes of Racial Inequity in the Criminal Legal System

WASHINGTON, DC – Today, The Sentencing Project released a new report, “One in Five: Racial Disparity in Imprisonment – Causes and Remedies.” The report examines three causes of racial inequity in the criminal legal system and presents a series of promising reforms from over 50 jurisdictions across the country that can mitigate their impact. This publication is the latest in The Sentencing Project’s “One in Five” series examining racial inequities in America’s criminal legal system.

“Like an avalanche, racial disparity accumulates as people traverse the criminal legal system,” said Nazgol Ghandnoosh, Co-Director of Research with The Sentencing Project and lead author of the report. “While reforms across the last two decades have helped reduce overall levels of criminal legal system contact, the crisis of mass incarceration and racial injustice persists, and we are at risk of losing momentum and reversing hard-won reforms.”

Three key causes of racial disparities listed in the report include:

1.  Laws and policies that appear race-neutral have a disparate racial impact. Extreme sentences for violent crimes and reliance on criminal histories as a basis for determining prison sentences are drivers of racial disparities in imprisonment. In addition, the punitive nature of the War on Drugs and the associated sentencing laws that it sprouted, including mandatory minimum sentences, crack-cocaine sentencing disparities, drug-free school zone laws, and felonization of drug possession, all disproportionately impact Black Americans.
2. Racial bias influences criminal legal practitioners’ use of discretion. Prosecutors and judges often treat Black and Latinx people more harshly in their charging and sentencing decisions. Bias also affects the work of juries, correctional officers, and parole boards. Police and prosecutors, via their unions and professional associations, often lobby, litigate, and engage in public advocacy against reforms.
3. A financially burdensome and under-resourced criminal legal system puts people with low incomes, who are disproportionately people of color, at a disadvantage. Pretrial release often requires cash bail which disadvantages low-income people of color and increases the pressure to take a less favorable plea deal. State indigent defense programs are critically underfunded. In addition, incarcerated individuals struggling with substance use disorders often do not receive the treatment they need, jeopardizing successful reentry. Further, parole and probation supervision imposes scrutiny with few services.

The first report in the “One in Five” series presented an overview of incarceration and supervision trends. The second report interrogated the large footprint of policing – particularly of Black Americans – as a failed response to racial disparities in serious crimes. The fourth and final report in the series, to be released in January 2024, will focus on criminal legal policies that harm public safety by exacerbating socioeconomic inequalities and the reforms that correct this final source of injustice.