Tuesday, October 16, 2018
Opinion

Column: On race and criminal sentencing, prosecutors escape blame

In response to allegations of racial bias in sentencing, bills recently introduced by two Florida legislators would require the state to begin gathering data on criminal sentences handed down by judges. The bills come after a Sarasota Herald-Tribune investigation published earlier this year that analyzed data from the state court and corrections system from 2004-15.

The Herald-Tribune report found that when black defendants received the same sentencing guidelines "score" as white defendants, they were sentenced to longer terms in prison. The "judicial accountability" bills would allow evidence of racial disparity in sentencing to disqualify a judge from cases involving members of that demographic group.

As someone who has spent 10 years studying criminal justice policy and incarceration growth in Florida, I applaud legislators who support better public access to criminal justice data. However, the sponsors of the judicial accountability bills and Herald-Tribune reporters have erroneously placed the blame for sentencing disparities on judges, while staying eerily quiet on the role of prosecutors. If we want to understand who goes to prison and for how long, we need to start looking at the choices of prosecutors.

In fact, Florida state attorneys designed Florida's current sentencing structure in order to increase their ability to treat some people more harshly than others. Florida first implemented sentencing guidelines in 1983 in order to reduce the prison population. Legislators hoped sentencing guidelines would limit who could be sent to prison, reserving prison space for violent offenders and reducing time served.

As I explain in my forthcoming book, Building the Prison State: Race and the Politics of Mass Incarceration, Florida's state attorneys never liked the sentencing guidelines, which they claimed restricted their discretion and ability to plea bargain with defendants. When Republicans gained power in the state Legislature in 1997, the Prosecuting Attorneys Association saw an opportunity to reshape Florida's sentencing structure.

Their proposal allowed judges to impose the statutory maximum penalty for any felony. In addition, it created a "floor" (or minimum number of guideline points) under which a judge could not impose a non-prison sentence without written reasons. When defense attorneys pointed out that this would allow a judge in Pensacola to punish the same crime differently than a judge in Miami, legislators said that was okay by them.

Black legislators also raised the concern that the new "Criminal Punishment Code" would lead to racial disparity. Unable to stop the core changes to the sentencing structure, they insisted that the law require judges to continue to use sentencing scorecards in order to provide some means of assessing and comparing sentences across region, race and other factors. Yet the 1997 law also gutted the Sentencing Guidelines Commission — the one agency with a mandate to analyze the data.

Twenty years later, it took a newspaper to finally analyze the scorecard data. Granted, the scorecards reveal some devastating stories of black defendants who served years in prison while their white counterparts received probation. What the scorecards don't reveal are prosecutors' charging decisions and plea bargaining practices.

Anyone familiar with a criminal court in this country knows that the vast majority of defendants plead guilty. In the last three years, only 2 percent of Florida felony defendants received a trial. Florida judges routinely accept the negotiated plea deal between the prosecutor and defense attorney. Thus it is likely that the racial disparities in prison sentences begin with prosecutors' choices about what to leverage, and for whom, in their plea negotiations. For that we have no data.

But we do know that the Criminal Punishment Code that they supported allows them to threaten defendants the statutory maximum prison sentence for any particular offense. We also know that an African-American state attorney just took office for the first time in Florida's history. In a rare rebuke of prosecutorial discretion, Gov. Rick Scott recently stepped in when the new state attorney, Aramis Ayala, used her best judgment not to seek the death penalty in a politically charged case. When prosecutors want to use the full force of the law, even with drastic consequences, public officials remain silent.

The public and legislators should support more accountability in the criminal courts, but it must not stop with judges. If legislators want to understand bias in sentencing, they must draft a bill that collects data on prosecutors' filing and plea bargaining practices. If they want to control bias in prosecution, legislators should investigate the idea of plea bargaining guidelines, like are used to some extent in New Jersey and the federal system.

Yet first legislators have to decide that racial disparities in criminal sentences are something they want to fix. Indeed, despite what the reporters for the Herald-Tribune suggest, Florida lawmakers have not "struggled for 30 years to create a more equitable system." Quite the contrary: The majority of Florida legislators have displayed a striking indifference to racial disparity.

Heather Schoenfeld is an assistant professor of legal studies and education and social policy at Northwestern University and a Public Voices fellow. She is the author of a forthcoming book, "Building the Prison State: Race and the Politics of Mass Incarceration" (University of Chicago Press).

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