Lecture
By
Anne T. Sulton, Ph.D., J.D.
Licensed In Wisconsin And Colorado
www.sultonlawoffices.com

21st ANNUAL LAWYERS' CONTINUING LEGAL EDUCATION SEMINAR

Sponsored By

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
IN CONJUNCTION WITH THE NATIONAL BAR ASSOCIATION

JULY 11, 2005 - MILWAUKEE, WISCONSIN

Introduction:

The purposes of this lecture are to: 1) familiarize CLE participants with a variety of reliable sources of information about crime and punishment; and 2) provide a framework for the analysis of issues pertaining to the sentencing of convicted offenders. My hope is that CLE participants will leave this lecture with a broader and deeper understanding of issues pertaining to sentencing disparity and disproportionate incarceration.

Our analysis of punishment issues must acknowledge the suffering experienced by crime victims. We simply do not have the luxury of limiting our analysis of justice issues to the question of: "How bad are the brothers being treated by the police, prosecutors, criminal court judges, and corrections officials?" Rather, among the questions we ask should be: "What punishment is fair and reasonable under the circumstances when a brother shoots a rival gang member, steals his neighbor's car, or sells crack at his sister's high school, gets caught, and then pleads guilty?" In others words, public opinion and the politics of punishment also are important factors for lawyers to consider, as we argue the fairness and/or constitutionality of specific types or amounts of punishment.

As civil rights lawyers, we are part of the conscience of this nation. As such, our advocacy must balance the interests of crime victims and offenders.

How Much Crime / How Many Victims?

During the past decade, law enforcement agencies in the United States received reports of over 125 million serious crimes. When using the term "serious crimes," I am referring only to the eight "Index Crimes" mentioned in the Crime in the United States, a/k/a Uniform Crime Reports, published annually by the Federal Bureau of Investigation (FBI), i.e., murder, forcible rape, robbery, aggravated assault, burglary, larceny-theft, motor vehicle theft, and arson. Of this number, over 178,000 were murders.

Citing reported annual decreases in the number of crimes, many observers claim we witnessed progress. In 1994, almost 14 million serious crimes were reported to police, with over 1.85 million of these listed as crimes of violence and 23,326 of these being murders. In 2003, 11.8 million serious crimes were reported to police, with nearly 1.38 million of these listed as crimes of violence and 16,503 of these being murders.

I see no cause for celebration. I remain alarmed. First, the serious crimes reported to police are not all serious crimes occurring. Other reliable federal government statistics, including the Victimization Surveys, and rigorous empirical scholarly research, such as "self-report" studies, show almost double the number of crimes reported to police actually occur. For example, the United States Department of Justice's Bureau of Justice Statistics (BJS) reports in 2003: "U.S. residents age 12 or older experienced approximately 24 million crimes." Of this number, BJS reports 5.4 million were crimes of violence. This 5.4 million figure is four times higher than the number of violent crimes noted in the above mentioned 2003 FBI report.

Second, the serious crimes listed as "Index Crimes" do not include drug dealing, simple assault, shoplifting, vandalism, and other remarkable instances or acts of incivility or disrespect. They do not include the criminal conduct of corporate executives draining billions of dollars from their companies' coffers, leaving thousands of workers without retirement benefits. They do not include illegal stock schemes, consumer fraud, or identity theft. They do not include the fake bomb threats, which cause widespread disruption and wrenching fear given the now ever-present threat of terrorism. They do not include the thousands of deaths or millions of disabling injuries caused when people violate traffic laws by driving too fast or too drunk. They do not include the illegal employment of un-documented workers or criminal violations of work safety rules.

We do not know how much crime occurs. Even if we did, we could not precisely measure the toll it takes on our nation. We do know crime is a major component of the profound misery and disabling agony millions of Americans experience each year.

We can accurately measure how much our nation spends annually for justice agencies' operations. It currently stands at nearly 200 billion dollars, with almost 40 billion dollars spent just to operate prisons. It is easier to comprehend the magnitude of the valuable resources devoted to address crime when looking at the figures of my home state Wisconsin. It has a total population of only 5.4 million people, but spends almost 900 million dollars each year to operate its prisons.

What causes crime? Is crime caused by economic disparity, poverty, unequal access to education, racism or prejudice, psychological maladies, drug addiction or alcoholism, absence of recreational facilities, dysfunctional families, differential law enforcement, or peer pressure? Is crime caused by offenders knowing most people never are arrested or punished for violating our criminal laws? Perhaps the cause is different for each person and/or is dependent upon specific circumstances. More likely than not, crime is a symptom of other complex social problems - a painful reminder our society is sick.

How do we stop people from intentionally causing serious harm to others? The various dimensions of this haunting question must be considered as we evaluate current strategies to address real or perceived inequities present in the administration of justice. Our analysis of punishment issues must acknowledge the suffering experienced by crime victims.

Data Overview:

To facilitate our discussion, I have attached copies of over a dozen government publications pertaining to crime and punishment. You can obtain these and many other similar documents by going to a variety of websites, including:

Academy of Criminal Justice Sciences
www.acjs.org

American Society of Criminology
www.asc41.com

Bureau of Justice Statistics
www.ojp.usdoj.gov/bjs

Federal Bureau of Investigation
www.fbi.gov

National Crime Prevention Coalition
www.ncpc.org

National Crime Prevention Council
www.ncpc.org

National Criminal Justice Reference Service
www.ncjrs.org

National Institute of Justice
www.ojp.usdoj.gov/nij

Sourcebook of Criminal Justice Statistics
www.albany.edu/sourcebook

U.S. Department of Justice
www.usdoj.gov

I will quickly review the attached documents, making certain you know how to accurately read the various tables and charts summarizing the statistical data. You can review these documents in greater detail at your leisure.

There are tens of thousands of studies on crime and punishment issues. Because our focus is on sentencing disparity and disproportionate incarceration, we are going to examine a few studies pertaining to violent crime. I am focusing on violent crime because the nature and extent of violence in American society drives much of our public policy about the type and amount of punishments to be imposed upon convicted offenders.

I have organized the materials into a question and answer format. We will move very quickly through the materials so that ample time is allotted to answer the final question posed, which is: What steps should civil rights lawyers take to address the disproportionate involvement of African Americans in the criminal justice system?

As we move through these materials, please note the following: 1) according to the U.S. Census Bureau, African Americans make up almost 13% of the American population; and 2) according to the Office of Juvenile Justice and Delinquency Prevention, African Americans comprise about 16% of the juvenile population.

Q. Is an African American most likely to be a victim of a violent crime?

A. Yes.

According to data published by BJS, in 2003, for every 1,000 African Americans, 29 were victims of a violent crime. By comparison, for every 1,000 whites, 22 were victims of a violent crime; for other races, 16 were victims of a violent crime.

According to the FBI's Crime in the U.S., a/k/a Uniform Crime Reports, in 2002 and in 2003, about 49% of all murder victims were African American.

According to data published by BJS, in 2002, African Americans were six times more likely to be homicide victims and seven times more likely than whites to commit homicides.

According to data published by BJS, 94% of African American murder victims were killed by African Americans.

Q. Are African Americans disproportionately arrested for crimes of violence?

A. Yes.

According to data published in the Sourcebook of Criminal Justice Statistics, in 2002, of those arrested for murder 50% were African American. Of those arrested for aggravated assault, 34.2% were African American. Of those arrested for forcible rape, 34% were African American. Of those arrested for robbery, 54.1% were African American.

According to the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, in a report entitled "Juvenile Arrests 2002," of all juveniles arrested for violent crimes, 43% involved African American juveniles. Of the juveniles arrested for murder, 50% were African American. Of juveniles arrested for aggravated assault, 37% were African American. Of juveniles arrested for forcible rape, 36% were African American. Of juveniles arrested for robbery, 59% were African American.

According to the FBI, for 2001, for every 100,000 African American juveniles, 766 were arrested for a violent crime. By comparison, for every 100,000 white juveniles, 213 were arrested for a violent crime.

According to analyses of 1980 to 1998 data from the National Crime Victimization Survey, African American juveniles' involvement as offenders in crimes of violence was 4.1 times higher than that of white juveniles. However, the average arrest rate for African American juveniles was almost 5.7 times higher than that of white juveniles.

Q. Are African American juveniles disproportionately adjudicated as adults?

A. Yes.

Mike Males and Dan Macallair, in a 2000 article entitled "Color of Justice: An Analysis of Juvenile Court Transfers in California," state they found minority juveniles, arrested for violent crimes, are 3.1 times more likely to be transferred to adult court than white juveniles arrested for violent crimes.

Q. Are African Americans disproportionately convicted of violent crimes?

A1. Yes.

In 2002, 1.1 million adults were convicted of felonies in state and federal courts. Of this number, federal courts convicted about 63,000 adults.

According to data published by BJS, 39% of all persons convicted, in a state court, of a violent crime, in 2002, were African American.

A2. Also note…

According to BJS, 90% of all persons convicted, in a state court, of a violent crime, in 2002, entered a plea of guilty.

The differences between the percentages of defendants represented by court appointed counsel and those represented by privately retained counsel, as it relates to whether or not a plea of guilty was entered, are not substantial.

Q. Are African Americans disproportionately sentenced to jail?

A. Yes.

At midyear 2004, 713,990 inmates were held in the local jails.

At midyear 2003, 691,301 inmates were held in local jails.

In 2003, 39.2% of all jail inmates were African American.

Q. Are African Americans disproportionately sentenced to prison?

A. Yes.

In 2003, for every 100,000 African Americans males, 3,405 were in prison. By comparison, for every 100,000 white males, 465 were in prison.

In 2003, for every 100,000 African American females, 185 were in prison. By comparison, for every 100,000 white females, 38 were in prison.

According to Melissa Sickmund, in a 2004 report published by the Office of Juvenile Justice and Delinquency Prevention and entitled "Juveniles in Corrections," in 1999, for every 100,000 African American juveniles, 1,004 were in a residential placement facility. By comparison 212 white juveniles were in a residential placement facility.

Q. Are African Americans disproportionately sentenced to death?

A. Yes.

In 2004, a total of 3,487 persons were on death row. Of this number 1,462 were African American.

Q. Are African Americans sentenced to longer terms because of their race?

A. This issue remains open to debate.

Some studies suggest African Americans are sentenced more harshly than whites. For example, in a 2004 article entitled "Relationship between Race, Ethnicity, and Sentencing Outcomes: A Meta-Analysis of Sentencing Research," Ojmarrh Mitchell and Doris L. MacKenzie state their review of 85 studies shows African-Americans are sentenced more punitively than are whites, even when considering offenders' criminal history and seriousness of the current offense.

Charles Ostrom, Brian Ostrom, and Matthew Kleiman, in a 2004 study entitled "Judges and Discrimination: Assessing the Theory and Practice of Criminal Sentencing," found: "Even in the context of structured sentencing, the comparative statistics analysis shows evidence of discrimination. Similarly situated offenders - with respect to conviction offense, aggravating offense factors, and prior record - can and do receive substantially different treatment. While some of the variation is race based, age and court location play larger roles." [page 319] "Once the base, offense, and prior record variables are taken into account, defendant characteristics continue to play a prominent role. The age, race, gender, and drug use of the offender affect the type of sentence received." [page 331]

The Ostrom, et al. study is quite interesting and suggests a sentencing decision might be influenced by an offender's demographic characteristics. However, additional rigorous empirical studies must be conducted before we can definitely state that race, standing alone, determines the type and/or length of sentence imposed.

Q. What steps should civil rights lawyers take to address the disproportionate involvement of African Americans in the criminal justice system?

A. ?