SCOTT SIMON, HOST:
There's new research that shows a continued troubling pattern around prison sentencing and race. Black men who commit the same crimes as white men receive federal prison sentences that are almost 20 percent longer on average. That's according to new data from the U.S. Sentencing Commission. Joined now by Paul Butler, law professor at Georgetown University and a former federal prosecutor. Mr. Butler, thanks so much for being with us.
PAUL BUTLER: Hey, Scott. It's good to be here.
SIMON: This is not a new finding, but why is this a little unexpected or especially troubling?
BUTLER: The federal sentencing guidelines have been an effort to try to rid the criminal justice process, and especially sentencing, from discrimination. The concern was that judges weren't actually being allowed to do their jobs. It was almost like they were computer programmers inputting factors and then having to issue this sentence that the guidelines demanded.
There was a constitutional challenge to that system, which resulted in judges having more discretion. And what we see from this recent report is that when judges have this discretion, inevitably, African-American men suffer worse outcomes than white men.
SIMON: Do prosecutors bear some responsibility for this? Because after all, they can plead out a case. They have tremendous authority themselves.
BUTLER: Prosecutors have more power than the judge to determine what the ultimate sentence is because prosecutors make the charging decision. And for a drug case, the amount of drugs that you're charged with determine the sentence to a large degree. And so the prosecutor is the most unregulated actor in our criminal justice process.
SIMON: So in your judgment, sir, have prosecutors been prejudiced, as well?
BUTLER: What we've seen from sophisticated studies like this of how criminal justice works in the United States is that every stage of the process - race infects all of that process. Prosecutors bear a great deal of the responsibility, but everybody's implicated, including police officers, including jurors, including judges.
SIMON: Mr. Butler, I gather that federal court cases account for about 10 percent of the sentencing load. Is this disparity also observed in regular court cases throughout the state and local systems?
BUTLER: The reality is it's not just race prejudice or gender prejudice generally because Hispanic men, for example, don't have these same unequal outcomes. Black women also don't have the same kinds of outcomes as black men. So there's something specific going on with bias against African-American men that's especially troubling.
SIMON: You are a former federal prosecutor, Mr. Butler. You know that prosecutors are often the first one to say, look, you need stiff penalties to be able to demonstrate that this is a crime and to protect people from people being in the streets who might harm them.
BUTLER: So tough on crime doesn't always translate to smart on crime. Locking folks up and throwing away the key isn't the way to enhance community safety. The other thing is that, in addition to being a former federal prosecutor, I'm also an African-American man. I know how it feels when that justice is turned against you based on something like your race and gender.
And so what we have to think about is ways to use the criminal process in a way that brings about equal justice under the law.
SIMON: To your mind, instead of sentencing people to prison for certain drug crimes - possession, I would imagine - greatly enlarge the number of treatment programs available and maybe residential facilities that aren't exactly prisons.
BUTLER: People ask, well, what would the African-American community look like if drug offenders weren't sentenced to prison for a long time? And the answer is, well, look at the white community to figure out what that would look like. Because we know that for drug crimes, African-Americans are selectively prosecuted and selectively incarcerated. I think when it comes to going to jail, what's good enough for white folks is good enough for African-Americans.
SIMON: Paul Butler - he's the Albert Brick Professor of Law at Georgetown University and author of "Chokehold: Policing The Black Man" (ph). He joined us by Skype. Thanks very much for being with us.
BUTLER: Great to be here, Scott.
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