Less Prison Time Matters: A Roadmap to Reducing the Discriminatory Impact of the Sentencing System Against African Americans and Indigenous Australians

Abstract

The criminal justice system discriminates against African Americans. There are a number of stages of the criminal justice process. Sentencing is the sharp end of the system because this is where the community acts in its most coercive manner by intentionally inflecting hardships on offenders. African Americans comprise 40% of the incarcerated population, yet only 13% of the population. The overrepresentation of African Americans in prisons is repugnant. Despite this, lawmakers for decades have been unable or unwilling to implement reforms which ameliorate the problem. This is no longer politically or socially tolerable in light of the groundswell of support for the Black Lives Matter movement following the killing of George Floyd. The Article proposes a number of principled reforms that will immediately reduce the incarceration levels of African Americans and assist to overcome the systemic biases against this group. One of our key recommendations is for the immediate release from incarceration of all African Americans who have served three-quarters or more of their sentence. This reform builds on the early release concept underpinning the First Step Act, which commenced in December 2018, but applies it specifically to African Americans. A number of other reforms are suggested to redress the wider causes of discrimination against African Americans in the sentencing system, including placing less emphasis on the prior convictions of offenders in the sentencing calculus and improving the educational outcomes of African Americans. Discrimination faced by the most socially and economically groups in society is not limited to the United States. Indigenous Australians are overrepresented in prisons at an even higher rate than African Americans. We argue that the solutions to ameliorating the unfair burdens on African Americans are equally appropriate in the Australian context.