Race does count in sentencing

Listen to this article

The First Tuesday in October 2007 has come and gone, with the United States Supreme Court taking up the important issue of what amount of judicial discretion should exist in the post-Booker world for a District Judge to sentence below the United States Sentencing Guidelines. The Court heard oral argument in Kimbrough v. United States (06-6330) and Gall v. United States (06-7949). (Oral argument transcripts available at www.supremecourtus.gov/oral_arguments/argument_transcripts.html.)

In Kimbrough, the judge faced the infamous 100-to-1 crack cocaine disparity, which has resulted in thousands of small-time drug offenders getting big prison sentences. The vast majority of those coming under the 100-to-1 ration are persons of color. Racial disparity in sentencing, which the Sentencing Guidelines were originally touted as supposedly eliminating, instead has become mandated racial discrimination in its application and impact. (Check out the articles at www.sentencingproject.org). Whether you call it de jure or de facto discrimination, the crack cocaine and mandatory minimum drug sentences under the Guidelines do discriminate. The government recommended 22 years for Kimbrough and the judge gave him 15. The Court of Appeals reversed. In Gall, the district court imposed a probation sentence on an ecstasy charge, where the Guidelines called for three years. Whether Booker retains its vitality and the discretion of federal district judges is maintained is up for grabs. Will the Supreme Court split the difference as the Seventh Circuit recently did in United States v. Wachowiak, No. 06-1643 (7th Cir. 8/1/07)? Will the presumption of reasonableness of the recommended Guidelines announced in Rita v. United States, 127 S.Ct. 2456 (2007), once again be the end of story?

Speaking of racial discrimination in sentencing, it not only exists in the federal system, but in Wisconsin as well. This is documented in the August 2007 Report on Race and Sentencing of the Wisconsin Sentencing Commission (www.wsc.wi.gov/docview.asp?docid=11696), which received media play in late September. This Report found that African-American and Hispanic offenders were far more likely to receive prison sentences rather than probation than similarly situated white offenders (2 times more likely for African-Americans and 2 ½ times more likely for Hispanic offenders). The racial disparity was markedly higher for drug cases and class D-H felonies. Add to this documented discriminatory impact the “fill the prisons up” effect of the no-parole Truth In Sentencing scheme Wisconsin has labored under since 2000, and Wisconsin’s criminal justice and sentencing system makes Mississippi and Alabama look progressive in comparison. This has to change.