Disparities abound in sentencing in our judicial system

Copyright 2019 (all rights reserved)

By Rudy Apodaca

(published as a commentary in the July 6, 2019 online edition, the July 7, 2019 online edition of the Houston Chronicle, and the July 7, 2019 print edition
of the San Antonio Express-News)

     Occasionally, after having explained to a client or a friend how the law works in a given situation, I’d hear, “That doesn’t seem fair.” Eventually, our discussion ends with the truism that life itself isn’t fair, so why should we expect our laws to stand unscathed?

     Throughout my career, I’ve often pondered the unintended unfairnesses in our legal system. Among other inequities, disparities in the sentencing of convicted criminals stood near the top of my list.

     And yet, they draw little attention unless a case involving a celebrity or a political figure who receives what may be perceived as a shockingly lenient sentence makes the headlines. It is then that the media creates a stir, suggesting that the defendant received a break because of his status and his ability to afford the finest attorneys. Case comparisons may be thrown in, noting the much higher sentences lesser-known defendants received for similar crimes.

     The recent furor caused by the sentencing of Paul Manafort, former chairman of President Donald Trump’s campaign, convicted on eight counts of tax and bank fraud, is one such case. Many viewed the judge’s sentence, less than 4 years imprisonment, as an instance of the system working well for a wealthy, well-connected individual.

     Manafort’s light sentence gave many of us pause, including Democratic presidential hopeful Sen. Elizabeth Warren, who tweeted a strong and dramatic comparison, “. . . Manafort . . . commits . . . fraud and gets 47 months. A homeless man, Fate Winslow, helped sell $20 of pot and got life in prison.”

     Actually, the juxtaposition, although real, requires more of Winslow’s backstory. He wouldn’t have drawn a life sentence but for Louisiana’s three-strikes law for repeated offenders. The pot charge was just enough to put him under the state’s habitual offender law. But other, comparable criminal sentencings on the books certainly prove Warren’s point.

     Such inequities have existed for decades; they’re not merely occasional aberrations, but true systemic unfairnesses. Multifaceted factors come into play in such disparities, some of them involving the complexities of human nature. The qualities, philosophy, and personality of the sentencing judge, for example, often play clear roles in sentencing.

     Some disparities are fixable. Others aren’t or may take longer to fix.

     When I speak of differences in such sentences, I don’t necessarily mean to always equate every disparity with racial, ethnic, or gender biases. Though, if we were to explore the available sentencing data, we’d find that at times such prejudices played a role.

     One need not be directly involved in the law or law enforcement to know that judges consider various factors in sentencing defendants, such as the severity of the offense and the defendant’s remorse or lack thereof. Whether the offense is the defendant’s first and many other aggravating or mitigating circumstances also come into play.

     In my 55 years as a lawyer, I did a considerable amount of criminal defense work. I was attuned to the differences in the sentences received by my clients. There were times when I felt the judge had been lenient, possibly more than my client deserved, and at other times, that the judge had handed down a harsh sentence.

     But it wasn’t until I became a New Mexico appellate judge in January 1987, when I was called upon to decide criminal cases on appeal, that I became particularly aware of sometimes glaring disparities in the sentencing of defendants in various areas of the state. I compared sentences handed down for a particular crime in any given year. I concluded that the sentences were consistently more severe in the eastern part of the state, especially among blacks and Hispanics, than elsewhere.

     From 2001 to 2004, I was asked by the State Bar of New Mexico to serve as co-chair of a task force assigned to study the administration of the death penalty in New Mexico. The task force’s final report was submitted to the State Bar on January 23, 2004.

     The report included a section discussing the state’s proportionality review in death penalty cases. In 1972, the U. S. Supreme Court, in Furman v. Georgia, invalidated all the death sentence statutes in the country for what the court termed arbitrariness.

     A few years later, in Gregg v. Georgia, the Court upheld a number of state statues adopted after Furman. In that case, the Court favored three devices for avoiding arbitrariness, the third of which was to become known in New Mexico as comparative proportionality review. This review was designed to see “that two criminal defendants of similar background, in the same jurisdiction, who commit factually identical or similar murders” get the same sentence, whether the sentence was a life sentence or the death penalty.

     In response to this case, New Mexico adopted all three of the devices favored by the Supreme Court, including proportionality review, which requires the New Mexico Supreme Court to overturn a death sentence if it determines that “the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

     I mention capital sentences to point out that we have taken extreme precautions in these complex areas involving death. Yet, we don’t do that for lessor crimes, with one exception: Ostensibly to lessen disparities, legislators, including our Congress, have enacted mandatory sentencing requirements. Under these guidelines, judges are required to impose sentences within a certain range of fines and confinements, often without taking into account a defendant’s record and other mitigating circumstances that would otherwise permit a lighter sentence.

     Most legal scholars, I believe, take exception to mandatory sentencing laws because they are viewed as taking discretion away from the judge, who becomes nothing more than a robot. Such laws don’t allow the trial judge to consider all relevant factors that should be taken into account.

     Several studies and testimony document instances where disparities in sentencing have occurred in both federal and state courts.

     One such paper, authored by David B. Mustard of the University of Georgia, appeared in the Journal of Law and Economics (April 2, 2001), a publication of the University of Chicago. Mustard’s paper addresses racial, ethnic, and gender disparities in sentencing in the federal courts under the Sentencing Reform Act of 1984. Ironically, the act was designed to eliminate sentencing disparities.

     In his abstract, Mustard summarizes his findings and conclusions:

     “This paper examines 77,236 federal offenders sentenced under the . . . Act and concludes the following. First, after controlling for extensive criminological, demographic, and socioeconomic variables, I found that blacks, males, and offenders with low levels of education and income receive substantially longer sentences. Second, disparities are primarily generated by departures from the guidelines, rather than differential sentencing with the guidelines. . . . Third, although black-white disparities occur across offenses, the largest differences are for drug trafficking. The Hispanic-white disparity is generated primarily by those convicted of drug trafficking and firearm possession/trafficking. Last, blacks and males are also less likely to get no prison term when that option is available; less likely to receive downward departures; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites and females.”

     The ACLU, on October 27, 2014, submitted written testimony to the Inter-American Commission on Human Rights at a hearing on Reports of Racism in the Justice System of the United States.

     At the hearing, the ACLU stated:

     “Our submission focuses on the significant racial disparities in sentencing decisions in the United States, which result from disparate treatment of Blacks at every stage of the criminal justice system and are consistent with a larger pattern of racial disparities that plague the . . . system. The human rights violations associated with such racial disparities are particularly egregious in the United States, and we hope that the Commission will . . . address them.”

     I’ll make three predictions:

     If you ever happen to see or hear about some sentencing disparity in our federal or state judicial system, you can rest assured that it’s happened before, it’ll happen again during your lifetime, and if you should live long enough, you’ll see that same cycle repeat itself time and again.

     And it’ll continue as long as our laws are enacted, enforced, and interpreted by the infallible human beings that we are.