This is reasonable summary of the research, from a study done in Washington State:
II. Literature Review
Academics, like many others, have long been concerned about the differential treatment of minorities by the criminal justice system. Racial and ethnic disparities occur in the criminal justice system when individuals, because of their racial or ethnic identity, are given different sentences than members of the majority. To examine racial and ethnic disparities, most researchers have focused on comparing the average sentences of racial minorities with those of Whites. If the severity of the crime and the criminal history of the offenders are statistically controlled and differences are still found between groups, this is seen as evidence that disparities are present in the system. Most criminological theory and public concern have focused on the possibility that racial and ethnic minorities are discriminated against and given longer or harsher sentences than Whites. However, some research has found that, in some cases, minority members are given more lenient sentences. Still other research finds little or no differential treatment in sentence length between groups. The term "disparity" is used in this report to identify either situation, indicating simply a difference in the handling of White and minority offenders. However, the directions of the differences are noted in the text.
Determinate sentencing laws at the federal and state levels, including Washington State's 1981 Sentencing Reform Act (SRA), resulted in part from concerns about racial and ethnic disproportionality in sentencing. Research on the impact of race on sentencing decisions, both prior to and since the movement to sentencing guidelines, has produced mixed results, and demonstrated that the role of race/ethnicity in sentencing is complex. In this section we review research on the impact of race/ethnicity on the sentencing of drug offenders in federal and state courts, including research in Washington State, highlighting some important factors that may impact racial and ethnic disparities in sentencing.
Research on Federal Courts
A number of studies have focused on the differential treatment of minority drug offenders in federal courts. In an important study by Peterson and Hagan (1984), the authors attempt to help explain why previous research has provided inconsistent findings with regard to race/ethnicity and sentencing. They observe that, while theoretical perspectives such as conflict theory predict disparate treatment of Whites and minorities (Quinney 1970; Chambliss and Seidman 1971), much of the empirical research conducted has not supported this prediction (Hindelang 1969; Hagan 1974; Kleck 1981). Peterson and Hagan argue that inconsistencies in empirical findings, and the lack of strong evidence of race effects, may occur because much of the research done has assumed static and overly simplistic conceptions of race and drug offenders. They argue that, at different times, different kinds of drug offenders have been seen as either villains or victims; the former deserving harsh punishments, and the latter deserving compassion and treatment. Race, they argue, may affect decision-making processes differently over time for these different types of offenders.
Peterson and Hagan's analyses of federal data suggest that among "ordinary offenders" (most drug users), minority offenders on average receive more lenient sentences than Whites. Alternatively, among "big dealers," African American offenders receive much longer sentences than comparable White offenders. Their study suggests that, when assessing racial disparities in the sentencing of drug offenders, both the context (time and place) and the interaction between race and offense/offender seriousness need to be taken into account.
More recently, McDonald and Carlson (1993) provide a detailed analysis of the sentences drug traffickers received in federal courts between January 20, 1989 and June 30, 1990. Their basic results suggest that, on average, courts sentence minority drug offenders more harshly than Whites even when the drug type is controlled (i.e., crack vs. powder cocaine). However, more sophisticated analyses indicate that those differences were largely due to the quantity of drugs involved, and to the influence of some extreme cases (outliers). Taking those factors into account, their results suggest that differences by race are relatively small and not always statistically significant.
Even more recently, Albonetti (1997) analyzed federal sentencing data for 1991-1992. She found both main effects of race/ethnicity (African American and Hispanic) controlling for legally relevant factors, as well as interactive effects whereby race modifies the relationship between other legal and extra-legal factors. Although she did not control directly for the amount of drugs being delivered, she did control for the type of drug, the number of counts, and the offense severity score, all of which should provide robust controls for the legally relevant case characteristics. That the effects of race were still significant with the added controls suggests that there are important differences in the sentencing of racial and ethnic minorities at the federal level. She also found significant differences in the probability of imprisonment and sentence length across circuits, reinforcing Peterson and Hagan's assertion that accounting for context is critical in studies of race and sentencing.
Taken as a whole, these studies suggest that it is important to: 1) control, as best possible, for legally relevant factors when making comparisons in the sentences of Whites, African Americans and Hispanics; 2) test for interaction effects between race and other legal and extra legal factors; and 3) examine jurisdictional variation in sentencing that might influence the role of race in decision-making.
Research on State Courts and Single Jurisdictions
A number of studies have examined the relationship between race and sentencing at the state level, including in states with determinate sentencing (see Meithe and Moore 1986; Kramer and Steffensmeier 1993; Steffensmeier, Ulmer and Kramer 1998). While those studies generally find that the effects of race are small once legally-relevant factors are taken into account (i.e., offense seriousness and prior offending), few studies have focused specifically on drug offenders.
Some evidence, however, suggests that race/ethnicity may be particularly significant in the sentencing of drug offenders. Klein, Petersilia, and Turner (1990) analyze data on over 11,000 offenders convicted of assault, robbery, burglary, forgery, theft, and drug crimes in 1980. They conclude that: "Taken together, our findings indicate that California courts are making racially equitable sentencing decisions." However, drug crimes were an exception. Specifically, they found that, even controlling for numerous legal and extra-legal factors, Latinos convicted of drug offenses had a higher probability of receiving a prison sentence than did Whites, although there was no difference for the length of sentence received.
In another important contribution to this literature, Unnever and Hembroff (1989) provide a theory that predicts the types of cases in which race and/or other extra-legal factors are most likely to influence judges' sentencing decisions. They argue that when the legally relevant evidence clearly suggests either incarceration or, on the other end of the spectrum, probation, race/ethnicity will most likely not influence judicial decisions. However, when case-related attributes are inconsistent, and the decision about what to do is less clear, the influence of race/ethnicity will become apparent and minority defendants will suffer harsher sentences.
Unnever and Hembroff test their theory with data on 313 male drug offenders in Miami, Florida. Their analyses support their hypotheses in that race and ethnicity do appear to influence judges' decisions to incarcerate rather than order probation in cases where the evidence of what to do is inconsistent. In contrast, in cases where the evidence clearly suggests incarceration, there are no differences by race/ethnicity. While they could not test the power of their theory to predict sentence length, they argue that their theory would offer a similar hypothesis (that minorities will receive longer sentences than Whites in cases where what one ought to do is less clear).
Like the Peterson and Hagan (1984) study at the federal level, Myers (1989) attempted to assess the impact of the war on crime on sentencing in Georgia from 1977 to 1985. She examined the influence of legislative changes on the sentencing of drug offenders and racial disparities in sentencing over time. She found that, although legal variables explained most of the variance in sentencing decisions, there were also significant race effects whereby African Americans were more likely to be incarcerated than Whites. Furthermore, African American offenders were more likely to be incarcerated for all types of drug offenses (use, sale, and trafficking), although the disparities were greatest for trafficking. She also found that racial disparities in sentencing varied over time, with disparities being reduced after 1982. She suggests that "this decline could reflect an erosion in the intensity of the crusade against drugs and a growing judicial awareness of litigation alleging racial discrimination in the imposition of the death penalty in Georgia" (1989: 313).
As with studies at the federal level, these analyses suggest that, while it is important to examine the direct effects of race, it is also important to examine interaction effects to see how and where race conditions the influence of other factors affecting sentencing decisions. These studies also suggest that there may be specific cases in which race becomes an important variable (e.g., when legally relevant factors do not conclusively suggest whether to incarcerate or not, or determine the length of the sentence). This finding has important implications for sentencing in Washington State, particularly with respect to the use of sentencing alternatives. Those alternatives require that judges exercise discretion based on considerations other than (or in addition to) factors inherent in the law. Because the "appropriate" sentence is necessarily less clear in those cases, race/ethnicity may be more important, on average, in such decisions than in decisions where the sentencing options are limited. Finally, this review suggests that the relationship between race/ethnicity and judicial decisions may vary across jurisdiction.
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