- Nov 2015
Chin, Gabriel J., (2013). Race and the Disappointing Right to Counsel. The Yale Law Journal. Vol. 122(8). P. 2236(24).
“Race and the Disappointing Right to Counsel” by Gabriel J. Chin addresses the insufficient outcome of the Gideon v. Wainwright decision. This asserted that no American can be denied the right to counsel based on class. Essentially, that if you cannot afford an attorney, one will be appointed for you. However, this case also said that the representation you are given must be adequate. According to Chin, Gideon had two purposes: “First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit…The Court’s second goal was to protect African American subject to the Jim Crow system of criminal justice” (Chin, 2013, 2236). Furthermore, Chin goes on to point out that the prison population has become far more racially disproportionate since the Gideon decision. “To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution, and sentencing for indigent white defendants that they cannot for clients of color” (Chin, 2013, 2236).
The Supreme Court has been hearing cases based on racial discrimination in the justice system long before Gideon. The author notes two relevant cases: Walton v. State and Griffin v. State, in which the Supreme Court deemed that the two defendants could not be held accountable for what they were convicted of because they did not understand the laws they violated. This of course set an interesting precedent in our justice system because it asserted that African American defendants couldn’t understand the law- which is not true. It did, however, set precedent for future cases where African American defendants may be treated unfairly based on their race. A more notable case, Brown v. Board of Education was another mentioned by Chin that points out the fact that we need to “craft a criminal justice ‘system in which racial discrimination would be eliminated root and branch” (Chin, 2013, 2239).
Another crucial thing to consider are vagrancy laws. Essentially, they were put into place to further racial oppression by making it illegal for people to loiter or wander. Not only do these laws make little sense, but they made local municipalities money. The author states on page 2245, “For many of these offenses, no bias on the part of judges or juries or inadequacy of counsel was necessary to convict, because any person charges could reasonably be found guilty of, say, being near a building or property without a satisfactory excuse. In many parts of the South, convicting African Americans on vague charges was a profit center for both local governments and local businesses” (Chin, 2013, 2245). Obviously, vagrancy in itself was an attempt to oppress minority populations further.
Plea bargaining is also mentioned by Chin as a consequence of Gideon. Gideon was a case based on the premise that all people have the right to counsel for trial. Plea bargaining completely negates that right, and people are encouraged to stay away from trial because they could be punished more severely. Furthermore, the point of plea bargaining was to help eliminate racial discrimination in sentencing. Yet the prison population has become overwhelmingly disproportionate since the implementation of this practice. According to Chin, “…The federal prison system, like that of the states, has substantial racial disproportionality- Native Americans are approximately 0.9 percent of the population, but 1.8% of federal prison inmates; people of Latino or Hispanic ethnicity are 16.3% of the population, but 34.9% of prisoners; and African Americans account for 37.2% of prisoners, even though they are only 12.6% of the general population. Good counsel alone has not remedied this problem” (Chin, 2013, 2252). Chin does an excellent job pointing out the issue of racial discrimination that is still rampant in our justice system.
Harris, A., Evans, H., & Beckett, K. (2010). Drawing Blood from Stones: Monetary Sanctions, Punishment, and Inequality in the Contemporary United States. American Journal of Sociology 115, 1753-1799.
In “Drawing Blood from Stones: Monetary Sanctions, Punishment, and Inequality in the Contemporary United States,” by Harris, Evans, and Beckett, the issue of legal financial obligations (LFO’s) and their effects on impoverished communities is discussed in detail. The authors begin the article by stating that the US incarceration rate is 6-12 times higher than those in comparable western European countries (Harris, Evans & Beckett, 2010, 1753). The authors also point out that “Between 1980 and 2007, the total number of people under criminal justice supervision- which includes the incarceration and those on probation and parole- jumped from roughly 2 million to over 7 million” (Harris, Evans & Beckett, 2010, 1754). These statistics are important to note, because the amount of LFO’s imposed on defendants who commit crimes, and those who are simply accused of crimes are increasing nationwide.
The method the authors used in their research was to analyze data from the Survey of Inmates in the State and Federal Correctional Facilities and from the Bureau of Justice Statistics data on sentencing. They also drew interviews with 50 Washington State residents living with felony convictions to determine how legal debt affects those who have it (Harris, Evans & Beckett, 210, 1766).
The majority of criminal punishment is concentrated in impoverished urban areas, and nearly 60% of young black men who have not graduated from high school have at some point been behind prison bars (Harris, Evans & Beckett, 2010, 1754). LFO’s are concentrated on poor areas with high populations of minority citizens. The authors state on page 1755,
“…The U.S. penal system is implicated in the accumulation of disadvantage and the reproduction of inequality for a number of reasons: the growing number of (mainly poor) people whose lives it touches, the impact of criminal conviction on employment and earnings…mass incarcerations’ destabilizing effects on families in urban communities, and the widespread imposition of ‘collateral’ or ‘invisible’ sanctions that transform punishment from a temporally limited experience to a long-term status” (Harris, Evans & Beckett, 2010, 1755).
LFO’s not only include general court fees, but fines and restitution orders. Not only is the national average according to the author’s research exceed $7,000 per offender, but all fines are subject to interest, surcharges, and collection fees (Harris, Evans & Beckett, 2010, 1759).
Furthermore, we have even gone so far as to impose fees on those utilizing indigent defense. Meaning, those who need a public defender because they cannot afford a private attorney, must pay a user fee regardless of the Gideon v. Wainwright decision (Harris, Evans & Beckett, 2010, 1758). That was decided in Oregon- a liberal state. Additionally, in Washington, Superior Court judges can now impose up to 17 fees on felony defendants when they are sentenced. In New York, they can impose 19 different fees (Harris, Evans & Beckett, 2010, 1758).
This is all important to the issue of impoverished communities because LFO’s are affecting the innocent sometimes more than those incarcerated or sentenced. This is because most defendants have children, for whom they have been mandated to pay child support for. When they cannot pay because of legal fees, their children and overall family health and structure suffer and deteriorate (Harris, Evans & Beckett, 2010, 1760). This only perpetuates the cycle of poverty and family disenfranchisement that is common in poor urban areas. LFO’s are in essence, helping to keep poor areas poor.
Crystal S. Yang’s article entitled, "Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing," Yang analyzes the relationship between federal sentencing guidelines, judges, and minority defendants. In Yang’s research study, she was able to conclude that if a defendant was black, they were likely to receive sentences that were two months longer on average than their white counterparts. Yang conducted this research by linking judges to defendants before and after the United States v. Booker Supreme Court case, which struck down mandatory-guidelines sentencing in 2005 (Yang, 2015, 76).
The "Booker" case created dramatic changes in the way defendants are sentences on the basis of race. According to Yang, “…Booker significantly increased racial disparities after controlling for extensive offender and crime characteristics. The black-white sentencing gap increased by two months in the post "Booker" period, a 4 percent increase in the average sentence length and a doubling of the baseline racial gap” (Yang, 2015, 77).
The data collected for this paper was from the USSC, the Transitional Records Access Clearinghouse (TRAC), and the Federal Judicial Center. One major crime Yang focuses on is that of drug trafficking and drug offenses in general. “Racial disparities increased significantly among defendants convicted of drug-trafficking offenses, controlling for primary type of drug… Given that almost 70 percent of drug offenders receive a mandatory minimum sentence, the increase in racial disparities in drug offenses after “Booker” may reflect differential application of mandatory minimum sentences” (Yang, 2015, 95).
Overall, the article is an analysis of sentencing after the “Booker” case was struck down, and how its absence has had detrimental effects on African Americans being charged with crimes. Mandatory minimums and other federal sentencing guidelines were intended to decrease the amount of judicial discretion, and according to Yang, their absence has led to harsher sentences for minorities being charged specifically with drug offenses.
Yang, Crystal S., “Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing. (2015). The Journal of Legal Studies. The University of Chicago Press, Vol. 44. No. 1.
- Oct 2015
Shimica Gaskin’s article, “Women of Circumstance’ – The Effects of Mandatory Minimum Sentencing on Women Minimally Involves in Drug Crimes,” the rising issue of women minimally convicted on drug charges. An interesting type of drug conviction has begun to emerge: women whose partners’ traffic drugs being convicted alongside of them. More importantly, the disproportionate sentencing of these women. Federal conspiracy laws are cited as a leading cause of these unfair sentences being granted to bystanders. Simply the presence of a woman in the same house as here partner who is directly involved in drug crime can result in a conspiracy charge (Gaskin, 2004).
According to Gaskin, “A figurative triangle links women of circumstance, the male drug dealers they are romantically involved with, and the drugs themselves. The complicated relationships that create this triangle also lead to the conviction of many desperate, unsuspecting or coerced women who often have no prior criminal history” (Gaskin, 2004).
Gaskin goes on to point out that often times, the women involved with drug dealers play minimal roles in any drug trafficking activity, yet receive conspiracy charges nonetheless. It is also of critical importance to note the coercion that is often involved in these relationships. It is likely- according to Gaskin- that some women may be coerced into different activities by the drug-involved male partner. This is not taken into account when it is time for sentencing. Mandatory minimums also expel the opportunity for sentence reductions (Gaskin, 2004).
Furthermore, the requirements for federal conspiracy sentences are unnecessarily harsh. According to Gaskin, “…Merely permitting drugs in the home, answering the door, or answering the telephone could establish that the wife or girlfriend was a knowing member of the conspiracy” (Gaskin, 2004). This doesn’t make sense considering the coercive nature of many relationships, as well as the fact that answering your front door makes you eligible for a conspiracy charge.
In terms of mandatory minimums, prosecutorial discretion is not permitted in mandatory minimum sentencing, yet the frequency and intensity of conspiracy sentencing has increased among prosecutors. The purpose of mandatory minimums therefore has not necessarily been achieved due to conspiracy charges. Furthermore, mandatory minimums have made the punishments for women associated with drug traffickers harsher. According to Gaskin,
“Mandatory minimums require the courts to determine the sentences by the quantity of drugs and the size of the conspiracy, rather than the offender's role in the conspiracy. If a young woman with no prior criminal history is arrested for delivering to an undercover officer forty-eight bags of cocaine base totaling 6.854 grams, the Sentencing Guidelines imprisonment range would be anywhere from fifty-one to sixty-three months, which can be reduced by the judge. n70 However, mandatory minimum sentencing would subject that young woman to a minimum term of five years because the weight of the drugs serves as the basis for computing the sentence” (Gaskin, 2004).
Overall, this article was extremely insightful, because it shed light on an interesting aspect of mandatory minimums that is rarely discussed. It also talked in detail about conspiracy laws and their relation to women charged with drug related crimes.
Gaskin, Shimica (2004). “Women of Circumstance: The Effects of Mandatory Minimum Sentencing on Women Minimally Involved in Drug Crime.” American Criminal Law Review. Vol.41(4), p.1533(21).
In John Crank’s book "Imagining Justice," there is a section entitled "Ethnicity, Crime, and the Criminal Justice System," which explores the issue of injustices throughout the criminal justice system that emerge on the basis of race. Crank starts off the section by immediately stating the contemporary issues surrounding this topic. On criminality and immigration, he states “When criminality among immigrants are examined, no clear pattern of behavior emerges. Criminal behavior, when identified, appears to be contextualized by the process of immigration and resettlement” (Crank, 2003, 261). Crank goes on to suggest that the reasons for someone’s immigration can play a role in determining whether or not people will commit crimes.
Crank goes on to explain that generalizations are made about immigrant populations and how they have adapted to American culture. Crank attributes the emergence and desistence of crime to three factors: the age structure, the loss of traditional authority, and the degree of social cohesion (Crank, 2003, 262). The age structure refers to the fact that there are a high proportion of immigrant youth to each immigrant adult which can mean that high rates of youth may be predisposed to crime during their socialization. The loss of traditional authority refers to a parent’s inability to maintain control within the adaptation process- which is difficult because it is a challenge to traditional norms for them. And third, the degree of social cohesion, refers to the availability of community resources within immigrant communities that allow youth and immigrant adults to ease into their communities while being able to practice traditional norms (Crank, 2003, 262). All of these factors play an important role in adaptability for immigrant populations according to Crank.
Without proper modes of adaptation, Crank argues, criminal activity emerges. One interesting fact found in this section in relation to sentencing, is when Crank states, “Seemingly neutral case processing practices, especially concerning pretrial confinement decisions and sentence reductions for guilty pleas, operate to the systematic disadvantage of members of minority groups” (Crank, 2003, 265). Crank lists these disadvantages as, “pretrial confinement is typically aimed at those least likely to appear for trial. Those least likely to appear are those who lead unsettled lives, lack permanent residents and stable jobs. This falls disproportionately on disadvantaged minority groups” (Crank, 2003, 265). Lastly and most relevantly, “minority members are less likely to receive favorable sentence reductions for guilty pleas. Tonry suggests that this may stem from the distrust minorities have a country’s justice system and a belief that they are treated unfairly… This means that defendants who plead guilty earlier in justice proceedings receive shorter sentences” (Crank, 2003, 265).
Crank goes on to discuss the false assumptions surrounding immigrants in the US. For example, there is the misconception that all Latin Americans are Mexican. This is of course not true, and there is a very diverse groups of Latino/a immigrants in the US. Crank states, “Mexicans make up 61.2 percent of the Latino population in the United States. However, only about 33 percent of Mexicans are foreign born- most are resident United States citizens” (Crank, 2003, 266). Crank goes on to discuss the political ideologies surrounding assimilation and immigration. There is an ongoing attempt to learn how to adjust and assimilate in a new society. I think this- the difficulty of adaptation- is the main point of this section, and this is Crank’s argument for why and how the justice system affects immigrants. This was an interesting section, although I am not sure it adequately discusses how unfairly immigrants are treated by our criminal justice system- particularly in terms of sentencing measures.
Crank, John P. “Imagining Justice” (2003). Pages 261-276. Anderson Publishing Co. Cincinatti, OH. Print.
“The Rise and Fall of the Indeterminate Sentencing Ideal” from "But They All Come Back: Facing the Challenges of Prisoner Reentry" by Jeremy Travis. Pages 7-20, 2005.
Chapter 1 of "But They All Come Back" by Jeremy Travis discusses indeterminate and determinate sentencing in great detail. It discusses its origin, its purpose, and its effect on the criminal justice system. Discretion being the main element of indeterminate sentencing- its role and legitimacy is often questioned. When judges determine a sentence for a person who has been convicted of a crime, they are supposed to take several things into account under this lens. “…the crime’s severity, the extent of any prior criminal convictions, the offender’s family circumstances, and his or her prospects for rehabilitation” (Travis, 2005, 15). Parole boards and parole officers are also supposed to take such factors into consideration when determining what the offender requires and needs after incarceration or custody.
The author goes on to discuss the purpose of the criminal sanction. Travis argues that the main point of a sanction is in fact rehabilitation rather than the commonly presumed punishment. However, Travis goes on to say that under indeterminate sentencing, rehabilitation is difficult to achieve because indeterminate sentencing requires that judges decide how an offender will be rehabilitated as well as parole boards and officers.
Furthermore, Travis discusses the criticism of indeterminate sentencing. These include racial discrimination, too much reliance on judicial discretion and much more. Specifically, “The practice of assigning significant sentencing responsibilities to the judicial branch was criticized as an inappropriate exercise of unchecked, unguided, and unreviewable power” (Travis, 2005, 17). Alternatively, “…the goal of rehabilitation was roundly characterized as tantamount to coddling criminals” (Travis, 2005, 17). The author goes on to cite the “Nothing Works!” report as a reason for the collapse of the rehabilitative ideal when relating to prisons.
Travis ends the chapter by stating there has been no new framework proposed, and “A number of states have enacted laws imposing mandatory minimum sentences, thereby depriving judges of the community supervision option and generally increasing the size of the prison population” (Travis, 2005, 20). This chapter have an interesting background on indeterminate sentencing, as well as granted insight into the rise of mandatory minimum sentences.
“But They All Come Back: Facing the Challenges of Prisoner Reentry” by Jeremy Travis. 2005. The Urban Institute Press. Washington D.C. 1st Edition. Pages 7-20. Print.
"Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums)" by Paul G. Cassell
In the article "Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums)," author Paul Cassell attempts to shed light on whether or not an argument of undue severity can be made against mandatory minimums. According to Cassell, this is an argument that has not been made, although I would beg to differ. However, Cassell claims the guidelines associated with federal sentencing guidelines are not too severe because they fit social norms as prescribes by the public, as well as provide deterrence benefits and have “strong potential for being cost-effective crime control measures” (Cassell, 2004, 1018).
Cassell begins his argument by addressing a speech given by Supreme Court Justice Anthony Kennedy, which prompted a nationwide discussion about the severity and the need for a reduction in mandatory minimums across the board. The author does note before going into methods and literature, this his approach will not fully delve into the issue of all discretionary sentencing measures. He posits that it is “fair to say that some calls for more “discretion” are, in truth, calls for lower sentences” (Cassell, 2004, 1019).
Crime control and just deserts have been known to be the purpose of punishment and adjudication in the criminal justice field. Cassell aims to assess these elements of sentencing as a way to measure punishment severity. The author goes on to present a table that shows the federal sentencing guidelines for crimes seen more frequently in court versus what the public feels the penalty should be. Most of them were fairly consistent. However, the public generally has a “tough on crime” approach to all things criminal justice, which implies that the federal government maintains the same way of thinking since their answers were almost identical.
An interesting part of this article however, is when Cassell states how many cases end up with a lesser sentence due to pleading down. “According to a recent General Accounting Office Study of downward departures, 36% of all federal sentenced involved a downward departure, including 44% of all drug sentences. While most of these departures are apparently for “substantial assistance” to government prosecutors or for the “fast tracking” of immigration offenses… the great bulk of federal cases (more than 95%) are resolved by a plea arrangement…” (Cassell, 2004, 1029). Here, the Cassell is positing that discretionary sentencing is making it so those on trial do not have to accept full responsibility- which is determined by the federal government sentencing guidelines.
This article was good in that it presented a point of view that is not seen very often in criminal justice: that mandatory minimums and discretionary sentencing are soft on sentencing. Cassell presented a lot of interesting data, and I think the argument is interesting.
Stanford Law Review Vol. 56, No. 5, 2004 Stanford Law Review Symposium: Punishment and Its Purposes (Apr., 2004), pp. 1017-1048
- Sep 2015
In the article "Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences" by Jeffrey Ulmer, Megan Kurlychek, and John Kramer, the prosecutorial discretion in the courtroom and its effects on sentencing outcomes is discussed. This article emerged out of the "Journal of Research in Crime and Delinquency" in 2007. The article begins by discussing the popular and abrupt trend of distrust in judges which caused the emergence of mandatory minimums. This then led to the ultimate trust in prosecutors (Ulmer, Kurlychek and Kramer, 2007, 427). Overall, this article is a summary and analysis of what it means for a prosecutor to not only act as a judge, but to apply mandatory minimum sentencing eligibility to different kinds of offenders.
The findings of the article were not entirely surprising. Based on the author’s multivariate analysis, prosecutors granted more mandatory minimums far less often to those who “negotiated guilty pleas in the full sample and drug subsample and substantially less often to those with non-negotiated guilty pleas in the three-strikes subsample” (Ulmer, Kurlychek and Kramer, 2007, 448). Furthermore, the findings suggest that prosecutors may use the “threat of applying longer mandatory sentence as a key piece of leverage to obtain guilty pleas… and thus more certain convictions (Ulmer, Kurlychek and Kramer, 2007, 448). It is also interesting to note that those who enter into a non-negotiated plea are far less likely to receive mandatory imposition (Ulmer, Kurlychek and Kramer, 2007, 448). According to the authors, this is due to the fact that it may look remorseful and can look like the start of rehabilitation if the offender automatically accepts a “guilty” plea because it shows they are taking responsibility.
In terms of the offender’s race playing a role in the type of sentencing they received, there was little data found that suggested being Black increased the chances of receiving a mandatory minimum. However, Hispanic people were more likely to receive mandatory minimums. Males are also more likely than women to receive mandatory minimums because they are seen as less blameworthy and dangerous (Ulmer, Kurlychek and Kramer, 2007, 451).
The article ends with a general discussion about how mandatory minimums are not necessarily mandatory at all considering how prosecutors pick and choose who receives them. When other factors than the actual offense are considered, like race and gender, it becomes increasingly clear that prosecutors are given substantial unilateral authority in determining sentences for people who have in some cases committed the same crimes. Overall, I feel the theme of this article was that the need for expediency and quick justice is getting in the way of judicial discretion and fairer outcomes.
Ulmer, J. T., M. C. Kurlychek, and J. H. Kramer. 2007. "Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences." Journal of Research in Crime and Delinquency 44.4: 427-58. Web.
Article: Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining? by Besiki Luka Kutateladze, Nancy R. Andiloro & Brian D. Johnson
"Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining?" Is an article that was published in Justice Quarterly in May 2015, which examines a possible cause of minority overrepresentation in prisons. Specifically, how the discretionary nature of plea bargains leads to mass incarceration of minority populations- particularly African Americans. The authors go on to define plea bargaining as a defendant agreeing to plea guilty for the benefit of the prosecutor in return for a lesser sentence (Kutateladze, Andiloro & Johnson, 2014). The article goes on to mention a few troubling facts about plea bargaining that are not commonly known. For example, plea bargaining is not legally binding. According to the authors, this can lead to a degree of inconsistency and bias in sentencing on the part of the prosecutor because they are only expected to follow a set of loosely defined guidelines when proposing a plea bargain. The individual bias of the prosecutor is able to play a significant role in determining the sentence for each defendant because there is no streamlined standard for every crime when it comes to discretionary sentencing.
Implicit Bias is also an important element in plea bargaining, because it is the main factor in discretion of the prosecutor or court official making sentencing decisions. As Banaji and Greenwald (2013) put it, “Implicit bias involves cognitive decision-making processes in which ascriptive offender characteristics affect court actor judgments, often in automatic and unintentional ways “ (Kutateladze, Andiloro & Johnson, 2014). It is natural for all people to have certain biases due to societal cues and subtle messages intended to make people think certain ways. Everyone has bias whether or not they want to admit it. The point of the authors here is exactly that: prosecutors are just as susceptible to these biases as anyone else. That is why plea bargaining and other determinate sentencing methods should not be based on the discretion of court officials.
Even more troubling are caseloads of prosecutors and public defenders. With ever-increasing arrests and criminal caseloads, prosecutors are less likely to be adequately thorough in determining sentences for those they are prosecuting. As stated by the authors, “Given their often heavy caseloads, court actors may rely on mental shortcuts, or schemas… Such schemas often involve defendant traits, such as race and ethnicity, which subsequently shape future interactions and decision-making outcomes” (Kutateladze, Andiloro & Johnson, 2014). Because the primary purpose of plea bargaining is expediency, it is likely that there will be shortcomings on the part of the prosecutors. This however, entirely negates the purpose of the trial in the criminal process. In fact, defendants are now essentially afraid of trials because they feel they will get an unfair or harsher sentence.
The data from this research was gathered through working closely with the New York County District Attorney’s Office to collect and analyze date in the prosecution of drug cases (Kutateladze, Andiloro & Johnson, 2014). The research findings were that minority offenders who were being charged with drug offenses- many for marijuana- received harsher sentences than their white counterparts. It is also important to note that three quarters of prosecutors studied were white. Furthermore, “the odds of custodial pleas increased slightly when prosecutors had heavier caseloads… In addition, defendants living in poorer areas were significantly more likely to receive custodial sentence offers” (Kutateladze, Andiloro & Johnson, 2014). The idea of assembly-line justice has made it difficult to grant fair and stream-lined sentences to defendants- particularly minority defendants. They are receiving more custodial sentence offers and are entering prison at higher rates than white defendants for similar crimes.
Kutateladze, B. L., Andiloro, N. R., & Johnson, B. D. (2014). Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining?. Justice Quarterly, (ahead-of-print), 1-29.