Racial Bias in Sentencing

When I made my first post about Genarlow Wilson, who was given a ten year sentence at 17 for receiving a consensual blowjob from a 15-year-old girl, I just wrote about the outrageousness of puritanical sodomy laws. In fact, there’s another angle: Wilson was black, as were both girls involved.

Responding to allegations of racism in sentencing, Eugene Volokh said (hat-tip to Gordo, as usual),

[Link] The girls with whom Wilson had sex — the alleged rape victim, and the 15-year-old whom the oral sodomy age-of-consent is supposed to be protecting — are black, too. (See this story.) As the article paraphrases the prosecutor’s view, “Had he not pursued charges against the boys, his critics could have just as easily chastised him for failing to protect the rights of the two black females. ‘I’m standing up for African-American victims in this case, as I would for any white victim,’ says [the prosecutor] …. ‘Calling me a racist denigrates the people who are victims in this case.'”

Harvard lawprof Randy Kennedy had made this point in other contexts as well — since most crime is intraracial, seeing prosecutors or police being tough on black criminals (and the defendant in this case did indeed commit a crime) may simply mean that they’re trying to protect black victims. Conversely, an environment in which prosecutors are afraid to take a hard line against black criminals because of the fear of being assumed to be racist is an environment that’s not good for law-abiding blacks.

Gordo snarks at Volokh; I’m going to be more nuanced. Although Volokh suggests that prosecutors are trying to protect black victims, in fact the opposite is true: crimes against whites get longer sentences than crimes against blacks.

For example, when it comes to death penalty cases, Death Penalty Info cites studies showing that although black defendants do worse than white defendants given the same crime, the greatest bias is against people who kill whites. Blacks are 38% likelier than whites to be sentenced to death; people who kill white people are more than half again as likely to be sentenced to death in all death penalty states for which statistics are available except Nevada.

One study quoted by Death Penalty Info looks at data from the late 1970s from a few states, especially Illinois, Florida, and Georgia, and finds that in fact whites are actually likelier to be executed than blacks, but only because they tend to kill whites more.

When it comes to terms of imprisonment, there is more recent and more complete data that shows blacks receive longer sentences than whites in each crime category but fraud. In rape cases, the average sentence is 15 years and 11 months for blacks versus 14 years for whites. And a review of studies says that discrimination is worse in the decision to incarcerate than in the length of the prison sentence.

The same review quotes a study as saying that BOW sexual assaults are treated especially harshly, although the study’s abstract says this effect does not always hold (the full article is not available online). However, it appears that the main difference is between BOW cases and other cases; to use older data, if I recall correctly Against Our Will says that BOW rapes average a 15 year sentence while BOB, WOW, and WOB rapes average about 3-4 each.

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