“Victims are not victims, not some fragile, sorrowful aftermath. Victims are survivors, and survivors are going to be doing a hell of a lot more than surviving.”[1]


       One out of every six American women will be the victim of an attempted or completed rape in her lifetime.[2] A 2015 study cites that 11.2% of all students experience rape or sexual assault through physical force, violence, or incapacitation (among all graduate and undergraduate students).[3]

            In 2015 Chanel Miller, initially known as “Emily Doe,” was attacked while unconscious after drinking during a frat party at Stanford.[4] As Miller was being attacked, two fellow students, Carl-Fredrik Arndt and Peter Jonsson, rode by on bikes, saw and stopped the attack. They then held her attacker, Brock Turner, until the police arrived.[5]

            One year later Brock Turner was convicted of three felonies: assault with the intent to commit rape, sexual penetration with a foreign object of an intoxicated person, and sexual penetration with a foreign object of an unconscious person. According to a local defense attorney, Jerome Mullins, Turner faced between two, and six years in prison for count one; and between three and eight years in prison for each of the other two counts.[6] Despite speculation from Mullins and other criminal attorneys Turner was sentenced to just six months.

And he only served three.[7]  

            This incident captured world-wide attention. His photo now appears in the latest edition of Introduction to Criminal Justice: Systems, Diversity, and Change, as the literal textbook definition of rape.[8] 

            The media and public outcry overlooked a glaring issue: disparate sentencing among African American men. Disparate sentencing among African American defendants. However, the race of the defendant is not the sole influence leading to disparate sentencing; rather, the race of the victim also impacts sentencing. “Studies show that judges generally impose harsher sentences for rape when the victim is white than when the victim is Black”.[9] African American victims are victimized twice: first by their attacker, and then by the judicial system. Further, “. . . in sexual assault cases race of the defendant appears to interact with the race of the victim, producing the most severe punishments for African-American defendants who assault whites.”[10] The system is failing both African American victims, and African American defendants. 

            Research demonstrates that in cases where African American men are accused of attacking white women victims laws and procedural mechanisms are applied differently than in cases where white men are accused of interracial sexual assault. 

            Between 1930 and 1972, a total of 455 people were executed for rape convictions. Eighty-nine percent of those executed were African American. A little over 97% of these executions took place in former Confederate states. Just a few days ago, Ronnie Long was freed from prison after 44 years for his wrongful conviction of raping a white woman. Compare 44 years to three months. 


Where Did This Disparity Start and Why Does it Persist? 

            1865. The 13th Amendment to the U.S. Constitution formally abolished slavery in the traditional sense. However, Section 1 details an exception. Involuntary servitude may be enforced “…as punishment for crime whereof the party shall have been duly convicted…” This phrase allowed the exploitation of the African American community to continue. Thus, African American people went from slaves to criminals. The criminal justice system was treated as a means to continue the racial hierarchy after the official condemnation of slavery. “Black Codes” and “Pig Laws” were solely applied to the African American community, these laws enacted harsher punishments than those applied to white people. Those imprisoned for violation of these laws were then “leased” out to prominent, wealthy families. Typically to work on plantations. Officially, convict leasing ended by World War II, but the systematic practice of over sentencing African American people compared to white people persists today.  

            Surprisingly law review articles and psychology studies are not the only discipline asking these questions. A 2014 economic paper asked the same question, “. . . . . answer the crucial question of why [African Americans] more frequently face mandatory minimum sentences: differences in underlying crime patterns and criminal histories, or disparate exercise of prosecutorial charging discretion?”[12] An in-depth study found that ceteris paribus African American men were found to face a roughly 9% premium, or increase, on their sentence. The study looked at a variety of factors, including, initial charging decisions, criminal history, multiple defendants, and mandatory minimum sentencing guidelines.

            Why did an economics journal care? Money, of course. And what was the economic take away? “Eliminating the ‘black premium’ that was identifed would reduce the steady-state level of black men in federal prison by 8,000–11,000 men and save $230–$320 million per year in direct costs.”[13]

Ultimately the study revealed: one out of every nine black men between the ages of 18 and 35 is currently incarcerated (Pew Center on the States 2008). If one assumes that all black male sentences in federal and state court face an average race premium of 9 percent, eliminating this disparity would ultimately move nearly 1 percent of all the black men under 35 in the United States from prisons and jails back to the community.[14]

– E. J. Bolan & L. Moose & S.T. Bonilla


Sources:

[1] Chanel Miller, https://www.glamour.com/story/women-of-the-year-emily-doe
[2]https://www.rainn.org/statistics/victims-sexual-violence
[3] https://www.rainn.org/statistics/campus-sexual-violence;  David Cantor, Bonnie Fisher, Susan Chibnall, Reanna Townsend, et. al. Association of American Universities (AAU), Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (September 21, 2015). (“Victim services agency” is defined in this study as a “public or privately funded organization that provides victims with support and services to aid their recovery, offer protection, guide them through the criminal justice process, and assist with obtaining restitution.” RAINN presents this data for educational purposes only, and strongly recommends using the citations to review any and all sources for more information and detail.)
[4] https://www.npr.org/2019/09/04/757626939/victim-of-brock-turner-sexual-assault-reveals-her-identity
[5] https://www.insider.com/chanel-miller-met-swedish-students-who-stopped-brock-turner-assault-2019-9
[6] https://www.paloaltoonline.com/news/2016/03/30/stanford-swimmer-found-guilty-of-sexual-assault
[7] https://time.com/4477395/stanford-swimmer-brock-turner-released-jail-today/
[8] https://www.vox.com/first-person/2017/11/17/16666290/brock-turner-rape
[9] Jennifer Wriggins, Rape, Racism, and the Law, 6 Harv. Women’s L.J. 103 (1983). https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1042&context=faculty-publications
[10] Ojmarrh Mitchell and Doris L. MacKenzie, The Relationship between Race, Ethnicity, and Sentencing Outcomes: A Meta-Analysis of Sentencing Research https://www.ncjrs.gov/pdffiles1/nij/grants/208129.pdf
[12] M. Marit Rehavi and Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, Journal of Political Economy, 2014, vol. 122, no. 6
[13] M. Marit Rehavi and Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, Journal of Political Economy, 2014, vol. 122, no. 6
[14] M. Marit Rehavi and Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, Journal of Political Economy, 2014, vol. 122, no. 6

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