Prosecutorial Discretion and Racial Disparities in Federal Sentencing

From Federal Sentencing Reporter Feb. 2007. No actor tasked with enforcing and ensuring respect for the nation’s laws can ignore concerns about the integrity of a criminal justice system increasingly perceived as reserving its harshest punishments for people of color.

February 1, 2007

Appeared in FEDERAL SENTENCING REPORTER • VOL. 19, NO. 3 • FEBRUARY 2007:

The federal criminal sentencing system is notorious both for its overall severity and for its disproportionate impact on people of color. Whether federal sentences are appropriately or excessively severe and whether their attendant racial disparities reflect the influence of legitimate or illegitimate factors are both subjects of intense ongoing debate among civil rights and sentencing reform advocates. Yet no actor tasked with enforcing and ensuring respect for the nation’s laws can ignore concerns about the integrity of a criminal justice system increasingly perceived as reserving its harshest punishments for people of color.

Federal prosecutors today wield unprecedented influence in the sentencing of criminal defendants through discretionary decisions made at multiple stages of a criminal prosecution, including charging decisions, plea agreements, and sentencing recommendations. With prosecutorial power comes an obligation to address racial disparities in the criminal justice system wherever and however possible without jeopardizing effective crime prevention. Despite the importance of prosecutorial decisionmaking to fair and equitable sentencing outcomes, the U.S. Sentencing Commission (“USSC”) has concluded that, in comparison with legislative and judicial sentencing choices, prosecutorial decisions that affect federal sentencing “have been relatively neglected, in part because of the paucity of data that can be used to investigate them.”

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