This remarkable but unheralded progress reflects 15 years of reforms by the courts, Congress and, most important, the Justice Department.
As the trial of ex-Minneapolis police officer Derek Chauvin for the death of George Floyd last year gets underway, the nation is reliving the horrible events that galvanized a movement for change in the criminal justice system.
Light’s analysis of federal sentencing suggests that among all the other feelings that supporters of reform experience this week, hope should be included.
What went right? Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.
Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the ratio of crack vs. powder quantities that guided punishment, to 18-to-1, from 100-to-1. And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.
The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities. For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.
The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s. As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.
The reform that Light credits as the most beneficial — Holder’s instructions to prosecutors — was also the most easily reversed. One of the Trump Justice Department’s first actions in 2017 was to rescind them, in favor of a renewed emphasis on pursuing maximum penalties.
However, this has been undone by the Biden administration — and probably did not reverse previous gains in racial equity anyway. Under Trump, imposition of mandatory minimum sentences rose slightly — but White defendants were more likely to be affected than Black defendants, according to Light’s study.
The federal system holds only about one-eighth of the 1.4 million prisoners doing time in the United States.
Still, racial disparities in incarceration, though large, have also been diminishing in the states. From 2000 to 2016, the ratio of Black offenders under the supervision of criminal justice (in prison, in jail, on probation or on parole) to White offenders declined from 8.3-to-1 to 5.1-to-1, according to a study by the Council on Criminal Justice, a nonpartisan think tank. The disparity decreased most for drug crimes.
More broadly, and perhaps not coincidentally, overall incarceration has fallen 11 percent since the peak of 1,615,500 prisoners in 2009. The imprisonment rate fell twice as fast for Black and Latino people than for White people during this period.
Light’s analysis suggests that the lesson of recent federal experience is to avoid apparently race-neutral policies that have a foreseeably racially disparate impact. Sens. Richard J. Durbin (D-Ill.) and Mike Lee (R-Utah) have introduced bipartisan legislation to further reduce mandatory minimums for certain nonviolent drug offenses.
Yet as important as statutory changes may be, the choices that police and prosecutors make about how to enforce the laws may matter more. Even without changes to sentencing, “nearly all” of the Black-White sentencing gap in drug cases would have been eliminated between 2009 and 2018, Light argues, simply because the Justice Department modified prosecutions.
“The substantial and unexpected reduction of the black-white sentencing gap over the last decade will necessarily translate to greater racial parity in the federal prison system. Whether this shift also translates to changes in the perception of the federal courts or racial divisions in the broader society remains unknown,” Light writes. “Much of it depends on the extent to which people notice.”