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The Sentencing Project, Racial and Ethnic Disparity in State Prisons, 2021

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The Color of Justice
Racial and Ethnic Disparity
in State Prisons
THE
SENTENCING
- - PROJECT
RESEARCH AND ADVOCACY FOR REFORM

THE
SENTENCING
- - PROJECT
RESEARCH AND ADVOCACY FOR REFORM

For more information, contact:
The Sentencing Project
1705 DeSales Street NW
8th Floor
Washington, D.C. 20036
(202) 628-0871

This report was authored by Ashley Nellis, Ph.D., Senior Research
Analyst at The Sentencing Project. Substantial research assistance was
provided by former Research Fellows Skye Liston and Savannah En.
The Sentencing Project promotes effective and humane responses to
crime that minimize imprisonment and criminalization of youth and
adults by promoting racial, ethnic, economic, and gender justice.

sentencingproject.org
twitter.com/sentencingproj
facebook.com/thesentencingproject
instagram.com/thesentencingproject/

Copyright © 2021 by The Sentencing Project. Reproduction of this
document in full or in part, and in print or electronic format, only by
permission of The Sentencing Project.

2 The Sentencing Project

TABLE OF CONTENTS
Overview

4

The Scale of Disparity

6

The Causes of Disparity
A Legacy of Racial Subordination
Biased Policies and Practices
Perpetuating Structural Disadvantage

12
12
13
15

Recommendations

17

Conclusion

18

Methodology

19

Appendix

20

References

22

The Color of Justice 3

OVERVIEW
When former Minneapolis police officer Derek Chauvin
killed George Floyd by kneeling on his neck in 2020, the
world witnessed the most racist elements of the U.S.
criminal legal system on broad display. The uprisings
that followed Floyd’s death articulated a vision for
transforming public safety practices and investments.
Almost one year later, Chauvin was convicted for Floyd’s
death, a rare outcome among law enforcement officers
who kill unarmed citizens. The fight for racial justice
within the criminal legal system continues, however.
The data findings featured in this report epitomize the
enormity of the task.
This report details our observations of staggering
disparities among Black and Latinx people imprisoned
in the United States given their overall representation
in the general population. The latest available data
regarding people sentenced to state prison reveal that
Black Americans are imprisoned at a rate that is roughly
five times the rate of white Americans. During the
present era of criminal justice reform, not enough
emphasis has been focused on ending racial and ethnic
disparities systemwide.
Going to prison is a major life-altering event that creates
obstacles to building stable lives in the community,
such as gaining employment and finding stable and
safe housing after release. Imprisonment also reduces
lifetime earnings and negatively affects life outcomes
among children of incarcerated parents.1 These are
individual-level consequences of imprisonment but
there are societal level consequences as well: high
levels of imprisonment in communities cause high crime
rates and neighborhood deterioration, thus fueling
greater disparities.2 This cycle both individually and

4 The Sentencing Project

societally is felt disproportionately by people who are
Black. It is clear that the outcome of mass incarceration
today has not occurred by happenstance but has been
designed through policies created by a dominant white
culture that insists on suppression of others.
At the same time, states have begun to chip away at
mass incarceration. Nine states have lowered their
prison population by 30% or more in recent years: Alaska,
New Jersey, New York, Connecticut, Alabama, Rhode
Island, Vermont, Hawaii, and California.3 This decline
has been accomplished through a mix of reforms to
policy and practice that reduce prison admissions as
well as lengths of stay in prison. Still, America maintains
its distinction as the world leader4 in its use of
incarceration, including more than 1.2 million people
held in state prisons around the country.5
Truly meaningful reforms to the criminal justice system
cannot be accomplished without acknowledgement of
its racist underpinnings. Immediate and focused
attention on the causes and consequences of racial
disparities is required in order to eliminate them. True
progress towards a racially just system requires an
understanding of the variation in racial and ethnic
inequities in imprisonment across states and the
policies and day-to-day practices that drive these
inequities.6
This report documents the rates of incarceration for
whites, African Americans, and Latinx individuals,
providing racial and ethnic composition as well as rates
of disparity for each state.7 The Sentencing Project has
produced state-level estimates twice before8 and once
again finds staggering disproportionalities.

RECOMMENDATIONS
Truly meaningful reforms to the
criminal justice system cannot
be accomplished without
acknowledgement of its racist
underpinnings.

KEY FINDINGS
•

Black Americans are incarcerated in state prisons
at nearly 5 times the rate of white Americans.

•

Nationally, one in 81 Black adults per 100,000 in the
U.S. is serving time in state prison. Wisconsin leads
the nation in Black imprisonment rates; one of every
36 Black Wisconsinites is in prison.

•

In 12 states, more than half the prison population
is Black: Alabama, Delaware, Georgia, Illinois,
Louisiana, Maryland, Michigan, Mississippi, New
Jersey, North Carolina, South Carolina, and Virginia.

•

Seven states maintain a Black/white disparity larger
than 9 to 1: California, Connecticut, Iowa, Maine,
Minnesota, New Jersey, and Wisconsin.

•

Latinx individuals are incarcerated in state prisons
at a rate that is 1.3 times the incarceration rate of
whites. Ethnic disparities are highest in
Massachusetts, which reports an ethnic differential
of 4.1:1.

1. Eliminate mandatory sentences for all crimes.
Mandatory minimum sentences, habitual offender
laws, and mandatory transfer of juveniles to the adult
criminal system give prosecutors too much authority
while limiting the discretion of impartial judges.
These policies contributed to a substantial increase
in sentence length and time served in prison,
disproportionately imposing unduly harsh sentences
on Black and Latinx individuals.
2. Require prospective and retroactive racial impact
statements for all criminal statutes.
The Sentencing Project urges states to adopt
forecasting estimates that will calculate the impact
of proposed crime legislation on different populations
in order to minimize or eliminate the racially disparate
impacts of certain laws and policies. Several states
have passed “racial impact statement” laws. To undo
the racial and ethnic disparity resulting from decades
of tough-on-crime policies, however, states should
also repeal existing racially biased laws and policies.
The impact of racial impact laws will be modest at
best if they remain only forward looking.
3. Decriminalize low-level drug offenses.
Discontinue arrest and prosecutions for low-level
drug offenses which often lead to the accumulation
of prior convictions which accumulate
disproportionately in communities of color. These
convictions generally drive further and deeper
involvement in the criminal legal system.

The Color of Justice 5

THE SCALE OF DISPARITY
Black Americans are incarcerated in state prisons at nearly 5 times the rate
of white Americans. Latinx Americans are incarcerated at 1.3 times the rate
of white Americans.

We begin with a national view of the concentration of
prisoners by race and ethnicity as a proportion of their
representation in the state’s overall general population,
or the rate per 100,000 residents.9 Looking at all states
together (Figure 1) we see that at the national level,
Black people are incarcerated at a rate of 1240 per
100,000 while white people are incarcerated at a rate
of 261 per 100,000. Black Americans are incarcerated
at 4.8 times the rate of white Americans. Nationally,
Latinx individuals are held in state prisons at a rate of
349 per 100,000 residents, producing a disparity ratio
of 1.3 to 1 when compared with white non-Latinx
Americans.10
Figure 1. Average Rate of Black, Latinx and White
Imprisonment Per 100,000 Residents

1240

349

Black

Latinx

261

White

Data Source: Carson, E. A. (2021). Prisoners in 2019. Bureau of Justice
Statistics; U.S. Census Bureau (n.d.). Age, sex, race, and Hispanic-origin--6
race groups. (SC EST 2019-ALLDATA6).

6 The Sentencing Project

The following table presents state rates of incarceration
by race and ethnicity according to their rank from
highest Black incarceration rate to lowest (Table 1).
The states with the highest rate of African American
incarceration are Wisconsin, Oklahoma, Idaho, and
Montana. Wisconsin has the highest rate of incarceration
among its Black residents with 2,742 per 100,000 Black
residents in prison. This statistic is remarkable given
that Black people comprise only 6% of Wisconsin’s
general population. This table also presents the rate of
incarceration for Latinx individuals, showing that it is
highest in Arizona, where 742 per 100,000 Latinx adults
in the state are in prison. The next highest rate of Latinx
imprisonment is in Idaho, followed by Connecticut,
Wyoming, and Colorado. Table 2 provides a slightly
different view which shows the odds of imprisonment
among Black individuals in each state given their overall
representation in the state.

Table 1. Imprisonment Rates by Race and Ethnicity, Ranked by
Black Imprisonment Rates
State

Table 2. Rate of Black Imprisonment
State

Rate of Imprisonment

Black

White

Latinx

2742

230

475

Wisconsin

Oklahoma

2395

511

480

Oklahoma

42

Idaho

2387

502

673

Idaho

42

IMontana

2272

371

293

Montana

44

Arizona

Arizona

48

Wisconsin

I

2105

428

742

IIowa

2084

225

327

Alaska

1987

417

238

IOregon

1932

344

376

Vermont

1737

239

Not Provided

INebraska

1733

195

395

1661

265

362

ISouth Dakota

1660

280

432

1654

324

355

175

353

Kansas

Delaware

ICalifornia

1623

Colorado

1603

236

518

IArkansas

1597

450

252

Texas

1547

452

471

INevada

1543

379

319

1530

273

312

IPennsylvania

1523

206

469

Connecticut

1512

156

579

IMichigan

1479

230

Not Provided

Indiana

1443

320

243

1411

381

28

Ohio

I

Louisiana
Florida

IUtah

1411

340

227

1383

167

299

1370

466

188

IWest Virginia

1337

348

155

1337

381

525

IMaine

1331

143

Not Provided

1297

336

214

1246

287

135

1240

261

1229

216

Kentucky
Wyoming
Missouri

IVirginia
State Average

I

New Mexico
Washington

60

I

South Dakota

60

Delaware

60

California

62

I

Colorado

62

I

Arkansas

63

Texas

65

I

Nevada

65

Ohio

65

I

Pennsylvania

66

Connecticut

66

Michigan

68

Indiana

69

I

Louisiana

71

Florida

71

I

Utah

72

Kentucky

73

I

West Virginia

75

Wyoming

75

I

Maine

75

I

81
84

I

Illinois

86

Alabama

88

I

Mississippi

90

Minnesota

98

I

New Jersey

99

398

211

Minnesota

1023

105

186

INew Jersey

1009

81

162

1006

361

216

989

296

163

947

410

84

848

172

407

I

287

Georgia

821

131

239

810

209

194

754

96

285

746

141

123

INew Hampshire

742

269

241

Massachusetts

466

63

260

99

Tennessee

101

Hawaii

106

I

North Dakota

118

South Carolina

121

I

Rhode Island

122

North Carolina

123

I

New York

133

Maryland

134

I

New Hampshire

135

Massachusetts

214

I

172

INew York
Maryland

58

Kansas

Washington

1107

North Carolina

Nebraska

I

IMississippi

IRhode Island

58

I

81

223

217

52

Vermont

New Mexico

Not Provided

823

Oregon

State Average

421

South Carolina

I

393

156

I

50

349

1132

North Dakota

48

Alaska

77

1166

Hawaii

Iowa

80

IIllinois

ITennessee

I

Virginia

222

Georgia

I

Missouri

1195

Alabama

I

1 in 36

Data Source: Carson, E. A. (2021). Prisoners in 2019. Bureau of Justice Statistics; U.S. Census Bureau (n.d.). Age, sex, race, and Hispanic-origin--6 race
groups. (SC EST 2019-ALLDATA6).

The Color of Justice 7

It is important to keep in mind that the absence or
unreliability of ethnicity data in some states produces
ethnic disparities in those states that may be
understated. Since most Latinx people in those instances
would be counted in the white prison population, the
white rate of incarceration would therefore appear
higher, and consequently the Black/white and Latinx/
white ratios of disparity would be lower as well. Indeed,
Alabama, Maine, Michigan, and Vermont did not report
ethnicity figures to the U.S. Bureau of Justice Statistics
in 2019. In additional states the figures are very likely
to be undercounts. An example lies in Florida, which

claims that 13% of its prison population is Latinx though
more than one quarter of its residents are Latinx. There
are most assuredly more Latinx people in prison than
are officially reported but the exact number is unknown.
Due to these potential underestimates the incarceration
rates of whites are likely inflated; similarly, in states
with larger undercounts of Latinx individuals, the
disparity ratio between Blacks and whites is likely to
be underestimated.
The maps presented below (Figs. 2 and 3) provide the
Black/white differential in incarceration rates followed
by the Latinx/white differentials. Appendix A (Tables 7

Figure 2. Black/white incarceration ratios

2

4

7

10+

Data Source: Carson, E. A. (2021). Prisoners in 2019. Bureau of Justice Statistics; U.S. Census Bureau (n.d.). Age, sex, race, and Hispanicorigin--6 race groups. (SC EST 2019-ALLDATA6).

8 The Sentencing Project

Figure 3. Latinx/white incarceration ratios

0

1

2

3+

Data Source: Carson, E. A. (2021). Prisoners in 2019. Bureau of Justice Statistics; U.S. Census Bureau (n.d.). Age, sex, race, and Hispanicorigin--6 race groups. (SC EST 2019-ALLDATA6).
= Data was not provided.
■

and 8) provides this same information in a table format.
In California, Connecticut, Iowa, Minnesota, New Jersey,
Maine, and Wisconsin, the rate of imprisonment among
Black people is more than nine times that for whites.
In an additional 13 states, the incarceration rate for
African Americans is greater than six times the
incarceration rate of whites. And even in the state with
the lowest racial disparity, Hawaii, the odds of
imprisonment for Blacks are more than twice as high
as for whites.
American prison populations have long been found to
have a racial and ethnic profile that departs significantly
from the demographics in the general population. U.S.
Census Bureau data on incarcerated persons from 1870
through 1980 show that Black incarceration rates have

ranged from three to nine times those of whites,
depending upon the decade and region of the country.11
The particular drivers of disparity are known to be related
to a mix of social policies that stretch beyond crime
policies to those related to housing, education, receipt
of public benefits, child care, and employment.
Regardless of the causes, the simple presence of racial
and ethnic disparities should be deeply worrisome given
the consequences for individuals and communities.
While chronic racial and ethnic disparity in imprisonment
has been a known feature of the prison system for many
decades,12 there has been little adjustment to policy or
practices—inside or outside the justice system—to
address these patterns directly.

The Color of Justice 9

Racial disparities in incarceration arise from a variety
of statistical combinations including a high rate of Black
incarceration, a low rate of white incarceration, or
varying degrees of the two. We note that the states with
the highest ratio of disparity in imprisonment are
generally those in the northeast or upper Midwest, while
Southern states tend to have lower ratios. The low
Southern ratios are generally produced as a result of
high rates of incarceration for both Blacks and whites.
For example, Arkansas has a Black/white ratio of 3.6:1
and Florida has a Black/white ratio of 4.1:1, considerably
below the national average of 4.8:1. Yet both states
incarcerate African Americans at higher than average
rates, 29% higher in Arkansas and 14% higher in Florida.
But these rates are somewhat offset by the particularly
high white rates of incarceration, 72% higher than the
national average in Arkansas and 30% higher in Florida.
Conversely, in the states with the highest degree of
disparity, this is often produced by a higher than average
Black rate, but a relatively low white rate.13 As seen in
Table 3 below, seven of the 10 states with the greatest
racial disparity also have high Black incarceration rates,
while all have lower than average white rates. In New
Jersey, for example, Blacks are incarcerated at a rate
over twelve times that of whites even though the Black
incarceration rate is 19% below the national average.
The high rate of Black/white racial disparity in New
Jersey reflects a particularly low incarceration of whites:
81 per 100,000, or nearly one-third the national average
(261).
Table 3. Ten States with the Highest Black/White
Differential
State

Black Imprisonment
Rate

White Imprisonment
Rate

B/W

New Jersey

1009

81

12.5

Wisconsin

2742

230

11.9

Minnesota

1023

105

9.7

Connecticut

1512

156

9.7

Maine

1331

143

9.3

California

1623

175

9.3

Iowa

2084

225

9.3

Nebraska

1733

195

8.9

Utah

1383

167

8.3

754

96

7.9

1240

261

4.8

New York
State Average

Data Source: Carson, E. A. (2021). Prisoners in 2019. Bureau of Justice
Statistics; U.S. Census Bureau (n.d.). Age, sex, race, and Hispanic-origin--6
race groups. (SC EST 2019-ALLDATA6).

10 The Sentencing Project

The scale of racial disparity in incarceration can also
be seen by comparing states that have lower than
average Black incarceration rates to those with higher
than average white incarceration rates. Here we find
that the states with the highest white rates (Oklahoma,
Idaho, Kentucky, Texas, and Arkansas) are still well
below most of those with the lowest Black rates
(Massachusetts,14 New Hampshire, Maryland, and New
York).15
Enduring racial disparities have long been a focus in
criminological research and the presence of disparities
is not disputed.16 There is a strong empirical foundation
for the persistence of racial and ethnic disparities in
state imprisonment. Explanations range from variations
in offending based on race to biased decision making
in the criminal legal system, and also include a series
of factors that have placed African Americans and
others at significant disadvantage. These include but
are not limited to poverty, education outcomes,
unemployment history, and criminal history.17 Research
in this area finds a smaller amount of unwarranted
disparity for serious crimes like homicide than for less
serious crimes, especially drug crimes.18
Criminologist Alfred Blumstein’s seminal research on
imprisonment trends examined racial differences in
arrests and compared these with the demographic
composition of state prison populations. His findings
were that as much as 20% of prison disparity among
state prisoners could not be explained by differential
offending by race. He concluded that if there was no
discrimination at the point of arrest and points afterward,
the racial makeup of people in prison should approximate
the population of people who are arrested. The greatest
amount of unexplained disparity was found among
persons sentenced for drug offenses: nearly half of the
racial disparity for prison among those convicted of
drug crimes could not be explained by arrest. In a 1991
follow-up study, Blumstein found that the level of
unexplained racial disparity was even greater (24%).19
Subsequent studies have replicated this work with
newer datasets and found even higher amounts of
unexplained disparity, particularly in the category of
drug arrests.20 In a study on arrest outcomes for felonies,
multivariate analysis of court records between 2017
and 2018 in Denver showed that felony drug cases

against white defendants were statistically significantly
more likely to be moved to drug court than similarly
situated cases against Black defendants, holding all
other factors constant.21
Reliance on arrest records as a reflection of criminal
involvement has been contested on the grounds that
arrests are a more accurate reflection of some criminal
activity—usually where less discretion is available, as
in the case with violent crime. In cases where a sizable
amount of discretion exists, arrests can reflect police
activity more so than criminal activity.22 In a study of
the role of gentrification of neighborhoods, researchers
found that citizen calls for police rose substantially in
the early phase of “neighborhood renewal” for low-level
nuisance crimes. Self-report data, or incident-based
data circumvents the problems with arrest data as a
measure; here too, we see unexplained race disparity.
Cassia Spohn’s research finds evidence of racial
disparity at the point of sentencing and this is most
evident for low-level crimes; in these matters, judges
depart from the constraints of the law and in so doing
may allow racial bias to enter into their judgment.23

University of Illinois at Chicago researchers tested
aspects of this proposition empirically. They examined
post-slavery county-level criminal justice developments
in four states to test their theory that more severe felony
case outcomes would occur in counties that had higher
rates of slavery in 1860.27 Using proper controls for
other possible contributing factors, they found that
being charged in a county with a substantial legacy of
slavery was associated with increases in pre-trial
detention, imprisonment, and length of sentence. This
finding held true for both Blacks and whites, leading
the authors to conclude that slavery has had long-term
negative consequences for all, not just African
Americans.

The totality of the research literature on race and ethnic
differentials in imprisonment leads to a similar
conclusion: a sizable proportion of disparity in prison
cannot be explained by patterns in criminal offending.24
Gaylene Armstrong and Nancy Rodriguez studied the
county-level differences in juvenile justice outcomes
across 65 counties in a northeastern state. They found
that it is not solely individual-level characteristics that
influence justice outcomes but the composition of the
community where the juvenile resides that makes a
difference as well. Specifically, they conclude that
“juvenile delinquents who live within areas that have
[more heterogenous populations] will more often be
detained, regardless of their individual race or ethnicity.”25
This is in line with observations by University of
Berkeley’s Loïc Wacquant, whose writing on race
relations emphasizes the importance of location as a
driver in disparity. Specifically, he contends that there
has been a deliberate effort at correctional control of
low-income Black communities that followed the end
of America’s legacy of slavery.26

The Color of Justice 11

THE CAUSES OF DISPARITY
The data in this report document pervasive racial
disparities in state imprisonment, and make clear that
despite important improvements in public awareness
of mass incarceration and some modest successes at
decarceration, racial and ethnic disparities are still a
substantial feature of our prison system.
Three recurrent explanations for racial disparities
emerge from dozens of studies on the topic: a painful
and enduring legacy of racial subordination, biased
policies and practices that create or exacerbate
disparities, and structural disadvantages that perpetuate
disparities.

A LEGACY OF RACIAL SUBORDINATION
Misperceptions about people of different races or
ethnicities influences criminal justice outcomes. An
abundance of evidence finds that beliefs about
dangerousness and threats to public safety overlap
with individual perceptions about Black people as well
as other people of color. Racial prejudice exerts a large,
negative impact on punishment preferences among
whites but much less so for Blacks.28

America’s legacy of white supremacy over Black people
has taken many forms over the country’s history from
chattel slavery to housing policies that made it
impossible for African Americans to buy homes. Mass
incarceration can be viewed as the current iteration.29
Black youth as young as nine years old express feelings
of disparate treatment by law enforcement. When
subjected to sophisticated empirical analysis, University
of South Florida criminologist James Unnever found
that this perception of discrimination in his sample was
associated with negative externalizing behaviors,30
even when other possible contributors were ruled out.
Though they may not have had encounters with police
yet, the traumatic experiences of earlier generations
are believed to be passed down.31
Racialized assumptions by key justice system decision
makers unfairly influence outcomes for people who
encounter the system. In research on presentence
reports, for example, scholars have found that people
of color are frequently given harsher sanctions because
they are perceived as imposing a greater threat to public
safety and are therefore deserving of greater social

“At least in America, race has a subjective history and meaning associated with
stereotypes and biases that are at times and places closely linked – both explicitly
and unconsciously – to crime, fear, anxiety, disorder and, ultimately, a yearning for
more laws, stepped-up enforcement, and harsher sanctions that are felt
disproportionately by racial and ethnic minorities.”32
Eric Baumer, Ph.D. Department of Sociology and
Criminology, Pennsylvania State University

I
12 The Sentencing Project

control and punishment.33 And survey data has found
that, regardless of respondents’ race, respondents
associated African Americans with terms such as
“dangerous,” “aggressive,” “violent,” and “criminal.”34
Media portrayals about crime tend to distort reality by
disproportionately focusing on stories of those involving
serious crimes and those committed by people of color,
especially Black-on-white violent crime.35 Since threequarters of the public say that they form their opinions
about crime from the news, this misrepresentation
feeds directly into the public’s crime policy preferences.36
Reforms to media reporting that more carefully and
accurately represent the true incidence of specific
crimes and their perpetrators, and victims, would change
perceptions about crime but would not necessarily
impact how these perceptions translate into policy
preferences. A 2013 study by Stanford University
scholars found that public awareness of racial disparities
in prisons actually increases support for harsher
punishments.37 Using an experimental research design,
researchers exposed subjects to facts about racial
compositions. When prisons were described as “more
Black,” respondents were more supportive of harsh
crime policies that contribute to those disparities. On
the other hand, some studies find that when individuals—
practitioners in particular—are made consciously aware
of their bias through implicit bias training, diversification
of the workforce, and education on the important
differences between implicit and explicit bias, this can
mitigate or even erase the actions they would otherwise
take based on unexplored assumptions.38 There is
some evidence of the positive effects of this: a 2004
study found that whites were less in favor of federal
sentencing laws that created a disparity between crack
and powder cocaine offenses once they were informed
about the law’s disproportionate impact on African
Americans.39

BIASED POLICIES AND PRACTICES
The rise in incarceration that has come to be known as
mass incarceration began in the early 1970s and is
widely attributed to three major eras of policymaking,
all of which had a disparate impact on people of color,

especially African Americans. Until 1986, a series of
policies was enacted to expand the use of imprisonment
for a variety of felonies. After this point, the focus moved
to greater levels of imprisonment for drug and sex
offenses. There was a particularly sharp growth in state
imprisonment for drug offenses between 1987 and
1991. In the final stage, beginning around 1995, the
emphasis was on increasing both prison likelihood and
significantly lengthening prison sentences.40
The criminal legal system is held together by policies
and practices, both formal and informal, which influence
the degree to which an individual penetrates the system.
At multiple points in the system, race may play a role.
Disparities mount as individuals progress through the
system, from the initial point of arrest to the final point
of imprisonment.41 Harsh punishment policies, some
of which were put into effect after crime began to decline
in the early 1990s, are the main cause of the historic
rise in imprisonment that has occurred over the past
40 years.42
Policing
As we have seen by continued unlawful engagement
by police with the public, including the tragic killing of
unarmed Black people by law enforcement officers,
police-citizen relations continue to reflect bias within
the criminal legal system.
Disparities are evident at the initial point of contact
with police, especially through policies that target
specific areas and low-level offenses that allow a high
degree of discretion. Police should be instructed to limit
their work to addressing actual crime but instead have
been tasked with an growing array of responsibilities
that fall under their purview dealing with public order,
traffic, and misdemeanor offenses.43 Though police
stops alone may not result in a conviction that would
lead to a prison sentence, the presence of a criminal
record that results from an arrest or conviction is
associated with the decision to incarcerate for
subsequent offenses, a sequence of events that
disadvantages African Americans. Jeffrey Fagan’s work
in this area found that police officers’ selection of who
to stop in New York’s now infamous “stop, question,

The Color of Justice 13

and frisk” policing program was dictated more by racial
composition of the neighborhood than by actual crime
in the area.44 His research showed that the process of
stopping, questioning and frisking individuals was based
on little more than suspicion (or on nebulous terms
such as “furtive behavior,” which were the justification
for many stops) and led to unnecessary criminal records
for thousands. New York’s policy was ruled
unconstitutional in 2013 with a court ruling in Floyd v.
The City of New York. A recent study of more than 60
million police stops between 2011 and 2015 across the
U.S. revealed that Black drivers were stopped more
frequently than white drivers and controlling for age,
sex, time, and location, Black and Latinx drivers were
more likely to be ticketed, searched, and arrested. In
addition, the study revealed evidence of a lower bar for
searching vehicles with Black drivers than for white
drivers.45
Pre-trial detention
Other stages of the system contribute to the racial
composition of state prisons as well. Factors such as
pre-trial detention—more likely to be imposed on Black
defendants because of income inequality—contributes
to disparities because those who are detained pretrial
are more likely to be convicted and sentenced to
longer prison terms.46 Cassia Spohn’s analysis of 40
state sentencing processes finds that, though crime
seriousness and prior record are key determinants at
sentencing, the non-legal factors of race and ethnicity
also influence sentencing decisions. She notes that:
“Black and Hispanic offenders—particularly those
who are young, male, and unemployed—are more
likely than their white counterparts to be sentenced to
prison than similarly situated white offenders. Other
categories of racial minorities—those convicted of
drug offenses, those who victimize whites, those
who accumulate more serious prior criminal records,
or those who refuse to plead guilty or are unable to
secure pretrial release—also may be singled out for
more punitive treatment.”47
Criminal history records
Racial disparities are most evident in decisions to
sentence a person to incarceration or divert them
to community supervision.48 Studies seeking to

14 The Sentencing Project

better understand the processes between arrest and
imprisonment, particularly at the stage of sentencing,
have been pursued in order to better understand the
unexplained disparities in state prisons.49 To many,
the role of prior convictions has been overlooked as
a factor.
Arrest for low-level drug offenses create disparate
outcomes by race. Black and white individuals use
and sell drugs at comparable levels but Black people
are nearly four times as likely as whites to be arrested
for drug offenses and 2.5 times as likely to be arrested
for drug possession.50
Differential responses by the criminal legal system
create greater imprisonment odds for Black Americans.
Research finds that presence of a prior criminal
record carries substantial weight in sentencing. The
American judicial system considers prior record
heavily at sentencing and applies what sentencing
scholar Kevin Reitz refers to as a “recidivist premium.”
In a system where a longer criminal history justifies
a longer prison sentence, this means that criminal
history factors disproportionately affect Black people.
In the most in-depth study completed on racial
disparities in a single state’s prison system, Richard
Frase, co-director of the esteemed Robina Institute of
Criminal Law and Criminal Justice at the University of
Minnesota, found that two thirds of racial disparities
in Minnesota’s imprisonment rates resulted from
criminal history factors weighed at sentencing.51
Weighing criminal history at sentencing may feel
intuitively wise but can be problematic. If previous
encounters with the system are the result of racially
biased engagement with the system, subsequent
sentences that rely on these prior records as a
measure of dangerousness worsen those disparities
even more.52
Prosecutorial charging
Still other research finds that prosecutorial charging
decisions play out unequally when viewed by race,
placing Blacks at a significant disadvantage to whites.
Prosecutors are more likely to charge Black defendants
under state habitual offender laws than similarly situated
white defendants.53 Researchers in Florida found

evidence for this relationship, and also observed that
the relationship between race and use of the state
habitual offender law was stronger for less serious
crimes than it was for more serious crimes.54 And
California’s three strikes law was identified as widening
disparities because of the greater likelihood of prior
convictions among African Americans. Californian’s
voted to repeal parts of the law in 2012 to limit the
allowability of previous convictions as “strikes.”55

PERPETUATING STRUCTURAL DISADVANTAGE
A third explanation for persistent racial disparities in
state prisons lies in the structural disadvantages that
impact people of color long before they encounter the
criminal legal system. In this view, disparities observed
in imprisonment are partially a function of
disproportionate social factors in African American
communities that are associated with poverty,
employment, housing, and family differences.56 Other
factors, not simply race, account for differences in crime
across place. Criminologists Ruth Peterson and Lauren
Krivo note that African Americans comprise a
disproportionate share of those living in poverty-stricken
neighborhoods and communities where a range of
socio-economic vulnerabilities contribute to higher
rates of crime, particularly violent crime.57 In fact, 62%
of African Americans reside in highly segregated, inner
city neighborhoods that experience a high degree of
violent crime, while the majority of whites live in more
advantaged neighborhoods that experience little violent
crime.58 Their work builds on earlier research focused
on the harms done to the African American community
by disparate living environments, and extends this
knowledge to evidence that this actually produces social
problems including crime.
The impact of structural disadvantage begins early in
life. When looking at juvenile crime rates across race,
it should not be assumed that youth of color have a
greater tendency to engage in delinquency, but that the
uneven playing field created for people of color from
the start, a part of larger American society, creates
inequalities which are related to who goes on to commit
crime and who is equipped to desist from crime.59 More

specifically, as a result of structural differences by race
and class, youth of color are more likely to experience
unstable family systems, exposure to family and/or
community violence, elevated rates of unemployment,
and higher school dropout rates.60 All of these factors
are more likely to exist in communities of color,
replicating social inequities that contribute to the
decision to engage in crime.
Moving forward
Criminal justice reform has become a regular component
of mainstream domestic policy discussions in recent
years. There is growing recognition among policymakers
that the system of mass incarceration has not been an
effective remedy for crime and has exacerbated racial
inequities. Some jurisdictions have pursued reforms
that include scaling back stop and frisk practices by
law enforcement and enacting legislative changes that
shift certain offenses from felonies to misdemeanors.61
These may reduce overall incarceration rates with the
prospect of greater impact on racial and ethnic minorities
as well.
Even though the pace of criminal reform is relatively
modest in addressing the scale of mass incarceration
and its enduring racial and ethnic disparities, the higher
levels of decarceration in some states are encouraging.
New Jersey, which has the greatest Black/white disparity
in the nation, provides an example of this potential.
Despite its high ranking in disparity among sentenced
prisoners, New Jersey has recently pursued a range of
reforms that could ameliorate persistent disparities
and accelerate progress if implemented to their fullest.
Like most states, New Jersey experienced a steady rise
in incarceration from the 1970s through the 1990s.
Between 2000 and 2019, however, the state has reduced
its prison population by 38%. Table 4 shows that the
state’s decarceration so far appears to have had the
greatest benefit to Black and Latinx individuals. The
overall depopulation of New Jersey prisons has included
a 39% reduction in African American prisoners, a 45%
reduction in Latinx prisoners, and a 30% reduction in
white prisoners.

The Color of Justice 15

Table 4. Change in Prison Population and Composition,
New Jersey 2000-2019
Year

Prison Total

White

Black

Latinx

2000

29,784

5,665

18,716

5,279

2014

21,590

4,750

13,170

3,454

2019

18,613

3,978

11,372

2,911

2000-2014

-28%

-16%

-30%

-35%

2014-2019

-14%

-16%

-14%

-16%

2000-2019

-38%

-30%

-39%

-45%

Data Source: Carson, E. A. (2021). Prisoners in 2019. Bureau of Justice
Statistics; U.S. Census Bureau (n.d.). Age, sex, race, and Hispanic-origin--6
race groups. (SC EST 2019-ALLDATA6).

In response to The Sentencing Project’s 2016 report62
that identified New Jersey as ranking highest in the
nation in Black-to-white disparity, the state legislature
quickly adopted “racial impact” legislation to mitigate
the identified disparate impact of proposed crime
legislation on Black and Latinx individuals going
forward.63 Since the bill’s passage two years ago,
however, only one racial impact statement has ever
accompanied a bill, according to media reports.64
In contrast, Iowa has undergone 26 separate racial
impact analyses since its racial impact law passed in
2009.65 Since The Sentencing Project’s initial analysis
of Iowa’s racial disparity in 2007,66 in which we reported
a Black/white disparity of 13.6:1, the Black-to-white
disparity has dropped to 9.3:1.67 Though we cannot be
sure that this decline is related to the introduction of
racial impact statements, it is encouraging to see the
state embrace racial impact laws and also reduce the
gap between Black and white incarceration levels.
Making such analysis retroactive to correct for misguided
policies already in place will likely result in quicker
progress toward racial equity.

16 The Sentencing Project

RECOMMENDATIONS
MITIGATE THE RACIAL INJUSTICE OF THE WAR ON DRUGS In addition, states should scale back punishments for
The war on drugs has not been an effective approach
to addressing either substance use disorders or the
crimes associated with them. The policies enacted
worsened racial disparities in incarceration. Yet, many
laws are still in effect at both the state and federal levels
that sentence individuals to lengthy prison terms for
drug–related offenses when alternatives to incarceration
would be more suitable. Official arrest statistics from
the Federal Bureau of Investigation (FBI) indicate that
there were over 600,000 arrests for marijuana possession
in 2018, representing 6% of all arrests nationally.68 Even
when an arrest does not result in conviction or
imprisonment, it creates a criminal record. Drug law
enforcement is disproportionately aimed at low-income
communities of color, creating downstream
consequences for these residents that are not felt by
those in affluent, primarily white communities.
Reforms should be enacted that scale back the use of
prison for low-level drug offenses and instead redirect
resources to prevention and drug intervention
programming. One reform gaining favor eliminates or
substantially limits the authority for law enforcement
to make drug-related arrests. In Northern Virginia’s
Fairfax County, for instance, Commonwealth Attorney
Steve Descano, in office since January 2020, has
instructed law enforcement to discontinue arrests for
simple possession of marijuana.69 This has the potential
to substantially decrease racial disparities in a county
where African Americans were more than three times
as likely to be arrested for marijuana possession than
whites.70

ENACT PROPORTIONAL SENTENCING
A host of mandatory minimum sentences and truth-insentencing provisions are still in place in most states.
These remove judicial discretion from the sentencing
process and tie up limited corrections resources by
incarcerating those who may no longer be a threat to
public safety. The states and federal government should
revisit and revise mandatory minimum sentences and
other determinate sentencing systems that deny an
individualized approach.

serious crimes, especially those that trigger long
sentences for repeat offenses. Applying recidivism
premiums to sentences—especially for low-level
offenses—is not an effective public safety strategy.
Indeed there is no evidence demonstrating that it
actually improves public safety. While public safety is
always a priority, imposing excessively long prison
sentences has actually been shown to have diminishing
returns on public safety.71 Furthermore, these policies
have had a disproportionate impact on people of color,
especially African Americans, because they are more
likely to have a prior record, either because of more
frequent engagement in crime or because of more
frequent engagement with law enforcement.72

MEASURE IMPACT OF CRIME POLICIES ON ALL
DEMOGRAPHIC GROUPS
Finally, several states are pursuing racial impact
legislation, an idea that first became law in the state of
Iowa in 2008. To date, Colorado, Connecticut, Florida,
Maryland, Minnesota, New Jersey, and Oregon have
implemented racial impact laws and nearly a dozen
additional states have introduced similar legislation.
The idea behind racial impact laws is to consider the
outcome of changes in the criminal code before passing
laws in order to provide an opportunity for policymakers
to consider alternative approaches that do not
exacerbate disparities. Similar to fiscal impact
statements or environmental impact statements, racial
impact statements forecast the effect of policy changes
on people of different races and ethnicities. The theory
behind racial impact statements is that there is a cost,
both financial and moral, to maintaining racial and
ethnic disparities.73
An improvement to the efficacy of racial impact
statements would be to establish a retroactive look at
existing criminal penalties that have caused undue
harm to Black and Latinx communities. Identifying
existing laws that have contributed to the current levels
of disparity should be followed by reversal or reform of
these laws.

The Color of Justice 17

CONCLUSION
States exhibit astounding rates of racial and ethnic
disparity in their rates of incarceration: African
Americans are incarcerated in state prisons at nearly
five times the rate of whites. This report also shows
that racial disparities vary broadly across the states,
from a high of 12.5:1 to a low of 2.3:1, but even in
Hawaii—the state with the lowest Black/white disparity—
African Americans are imprisoned at more than two
times the rate of whites.
There is not enough attention paid or action required
to end the chronic racial disparities that pervade state
prisons. If we continue to ignore or tolerate these
disparities, the United States is unlikely to achieve the
serious, sustainable reforms that are needed to end
mass incarceration. Overall, the pace of criminal justice
reform has been too slow as well as too modest in its
goals. Accelerated reforms that deliberately incorporate
the goal of racial justice will lead to a system that is
both much smaller and fairer.
Despite widespread acknowledgement that more needs
to be done to achieve racial equity in the criminal legal
system, reforms have stopped short of arriving at a
system that is truly fair and responsive to all
communities. Recent cases of police violence have
accelerated calls for racial justice across the U.S. That
urgency should extend to confronting racial injustices
that pervade the entire criminal legal system.

18 The Sentencing Project

METHODOLOGY
This report relies primarily on two major sources of
official data. The first is the U.S. Census, which counts
the nation’s residents every ten years and provides
estimates based on projections for years between its
official counts. The data in the report comes from 2019
projections based on the 2010 U.S. Census. The second
source of data used to generate the findings in this
report is the U.S Bureau of Justice Statistics. Each year,
it publishes results from its National Prisoner Statistics
(NPS) survey of the state departments of corrections.
The data used to generate the National Prisoners Series,
most recently Prisoners in 2019¸ are housed on the
National Criminal Justice Archive’s Inter-University
Consortium for Political and Social Research. Data on
race and ethnicity of prisoners sentenced to at least
one year in prison (NPS survey question: “On December
31, how many inmates under your jurisdiction -- a. Had
a total maximum sentence of more than 1 year [Include
inmates with consecutive sentences that add to more
than 1 year]). The Prisoners in 2019 publication reports
state totals in Table 4. Additionally, each state provides
to BJS the demographic composition of its prison
population, though this is not typically reported in the
National Prisoners Series. In the following states, data
on race and ethnicity provided directly from state
departments of corrections to The Sentencing Project
were used to augment the BJS data: Connecticut,
Hawaii, Massachusetts, Mississippi, and Rhode Island.

proportionately larger amount than they lower the Black
imprisonment rates (compared to the rates in this
report). As a result, the BJS black-white imprisonment
disparity is slightly larger than the disparities reported
here. The trends in the black-white disparity ratios in
the BJS data, however, track closely with the trends
shared in this report. The Latinx-white disparity reported
in the Prisoners Series is larger than the one reported
here.

Racial and ethnic composition of people in prison is
reported in the BJS Prisoners Series. Readers of this
report may notice differences between the BJS data on
imprisonment rates and the reported disparity ratios.
In particular, BJS shows higher incarceration rates when
viewed by race. As noted by colleagues elsewhere,74
BJS makes adjustments in certain states and these
appear to lower the white imprisonment rates by a

The Color of Justice 19

APPENDIX
Table 5. State Imprisonment 2019, by Percent Black
State

Prison

% Black in Prison

% Black in Population

Maryland

18,595

71%

29%

ILouisiana

31,609

67%

32% I

Mississippi

19,421

64%

38%

INew Jersey

18,613

61%

13% I

5,692

60%

22%

Georgia

I

54,816

60%

31% I

South Carolina

18,608

59%

27%

IVirginia

36,091

55%

19% I

Illinois

38,259

54%

14%

IMichigan

38,053

53%

14% I

Alabama

28,304

52%

27%

34,079

51%

21% I

Delaware

INorth Carolina
New York

Table 6: State Imprisonment 2019, by Percent Latinx
State

Prison

% Latinx in Prison

% Latinx in Population

6,723

60%

49%

ICalifornia

122,687

44%

39% I

42,441

39%

31%

ITexas

158,429

33%

39% I

19,785

32%

22%

7,602

28%

12% I

12,530

27%

16%

INew York

43,500

24%

19% I

Nevada

12,840

21%

29%

1,957

20%

15% I

6,665

19%

14%

18,613

16%

20% I

9,437

15%

13%

5,682

15%

11% I

19,261

14%

13%

New Mexico
Arizona

Colorado

IMassachusetts
Connecticut

IRhode Island
Utah

INew Jersey
Idaho

43,500

49%

14%

IFlorida

96,009

47%

15% I

45,702

46%

11%

Ohio

I

50,338

43%

12% I

IOregon

14,961

14%

13% I

Connecticut

12,530

43%

10%

Illinois

38,259

13%

17%

17% I

IFlorida

96,009

13%

26% I

Pennsylvania

INebraska

Washington

ITennessee

26,349

42%

Wisconsin

23,956

42%

6%

Kansas

10,177

12%

12%

17,759

41%

15% I

IWyoming

2,479

12%

10% I

45,702

10%

7%

23,956

8%

25,679

8%

IIowa

9,282

7%

6% I

1,794

6%

4%

IMinnesota

9,982

6%

5% I

34,079

5%

9%

5,692

5%

9% I
4%

IArkansas

9,982

36%

6%

IMissouri

Minnesota

26,044

35%

11% I

Indiana

27,180

33%

9%

158,429

33%

12% I

12,840

31%

9%

7,602

29%

7% I

122,687

29%

6%

ITexas

Nevada

I

Massachusetts
California

INebraska
Kansas

IOklahoma
Iowa

IRhode Island

5,682

27%

5% I

10,177

27%

6%

25,679

26%

7% I

9,282

25%

4%

1,957

25%

6% I

Kentucky

23,082

21%

8%

IColorado

19,785

18%

4% I

19,261

17%

4%

I

42,441

15%

4% I

6,800

13%

4%

Maine

I

2,185

11%

1% I

North Dakota

Washington
Arizona
West Virginia

1,794

10%

3%

IAlaska

4,475

10%

3% I

Oregon

14,961

10%

2%

IVermont

1,608

9%

1% I

3,801

8%

IUtah

6,665

Pennsylvania

IWisconsin
Oklahoma

North Dakota
North Carolina

IDelaware
New Hampshire

7% I
11%

2,691

4%

27,180

4%

18,595

4%

10%

IGeorgia

54,816

4%

10% I

3,801

4%

4%

IArkansas

17,759

3%

8% I

36,091

3%

9%

4,475

3%

7% I

50,338

3%

4%

18,608

3%

6% I

4,723

2%

4%

5,552

2%

11% I

IIndiana
Maryland
South Dakota
Virginia

IAlaska
Ohio

ISouth Carolina
Montana

IHawaii

26,349

2%

5%

IMissouri

26,044

2%

4% I

2%

Kentucky

23,082

1%

4%

7%

1% I

19,421

1%

3% I

6,723

7%

2%

IMississippi

6,800

1%

2%

Wyoming

I

2,479

5%

2% I

ILouisiana

31,609

0%

5% I

New Hampshire

2,691

5%

1%

Alabama

28,304

Not Provided

4%

I

5,552

4%

2% I

2,185

Not Provided

2% I

38,053

Not Provided

5%

1,608

Not Provided

2% I

South Dakota
New Mexico

Hawaii
Idaho

IMontana

9,437

3%

1%

4,723

3%

1% I

20 The Sentencing Project

Tennessee

7% I

West Virginia

IMaine
Michigan

IVermont

Table 7: Black/White Differentials, High to Low
State

Table 8: Latinx/White Differentials, High to Low

White

Black

B/W

State

81

1009

12.5

Massachusetts

IWisconsin

230

2742

11.9

Minnesota

105

1023

9.7

IConnecticut

156

1512

9.7

143

1331

9.3

175

1623

9.3

225

2084

9.3

195

1733

8.9

167

1383

8.3

96

754

7.9

156

1166

7.5

63

466

7.4

206

1523

7.4

Vermont

239

1737

7.3

Colorado

236

1603

6.8

IWyoming

381

2467

6.5

Michigan

230

1479

6.4

131

821

6.3

Kansas

265

1661

6.3

IMontana

371

2272

6.1

280

1660

5.9

INew Mexico

216

1229

5.7

344

1932

5.6

Ohio

I

273

1530

5.6

Washington

222

1195

5.4

Maryland

I

141

746

5.3

Delaware

324

1654

5.1

172

848

4.9

428

2105

4.9

IAlaska

417

1987

4.8

Idaho

502

2387

4.8

511

2395

4.7

320

1443

4.5

Virginia

287

1246

4.3

Florida

340

1411

4.1

Nevada

379

1543

4.1

North Carolina

209

810

3.9

336

1297

3.9

West Virginia

348

1337

3.8

ISouth Carolina

217

823

3.8

Louisiana

381

1411

3.7

IArkansas

450

1597

3.6

452

1547

3.4

ITennessee

296

989

3.3

Kentucky

466

1370

2.9

Georgia

361

1006

2.8

Mississippi

398

1107

2.8

269

742

2.8

421

1132

2.7

410

947

2.3

New Jersey

Maine

ICalifornia
Iowa

INebraska
Utah

INew York
Illinois

IMassachusetts
Pennsylvania

I

IRhode Island
South Dakota
Oregon

INorth Dakota
Arizona

IOklahoma
Indiana

I
I

IMissouri

Texas

I

INew Hampshire
Alabama

IHawaii

White

Latinx

L/W

63

260

4.1

156

579

3.7 I

96

285

3.0

I INorth Dakota

172

407

2.4 I

Pennsylvania

206

469

2.3
2.2 I

I IConnecticut
New York

I IColorado

236

518

230

475

2.1

I INebraska

195

395

2.0 I

California

175

353

2.0

81

162

2.0 I

131

239

1.8

I INew Mexico

216

393

1.8 I

167

299

1.8

Minnesota

I I

105

186

1.8 I

Arizona

428

742

1.7

I ISouth Dakota

280

432

1.5 I

225

327

1.5

156

223

1.4 I

381

525

1.4

265

362

1.4 I

502

673

1.3

I IWashington

222

287

1.3 I

273

312

1.1

Delaware

I I

324

355

1.1 I

Oregon

344

376

1.1

I I

452

471

1.0 I

Oklahoma

511

480

0.9

I INorth Carolina

209

194

0.9 I

269

241

0.9

141

123

0.9 I

379

319

0.8

I ISouth Carolina

217

172

0.8 I

371

293

0.8

Indiana

I I

320

243

0.8 I

Florida

340

227

0.7

Missouri

I I

336

214

0.6 I

Georgia

361

216

0.6

417

238

0.6 I

450

252

0.6

I ITennessee

296

163

0.6 I

398

211

0.5

I IVirginia

287

135

0.5 I

348

155

0.4

I IKentucky

466

188

0.4 I

410

84

0.2

Louisiana

381

28

Alabama

421

Not Provided

N/A

Wisconsin

I INew Jersey

Rhode Island
Utah

Iowa

I IIllinois
Wyoming

I IKansas
Idaho
Ohio

Texas

New Hampshire

I IMaryland
Nevada
Montana

I IAlaska
Arkansas
Mississippi
West Virginia
Hawaii

I I

I IMaine
Michigan

I IVermont

0.1 I

143

Not Provided

N/A I

230

Not Provided

N/A

239

Not Provided

N/A I

The Color of Justice 21

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2.
3.
4.
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University Press.
Ghandnoosh, N. (2021). Can we wait 60 years to cut the
prison population in half? The Sentencing Project.
Among countries with a population of at least 100,000 residents.
Carson, E. A. (2021). Prisoners in 2019. Bureau of Justice
Statistics.
Neill, K. A., Yusuf, J., & Morris, J.C. (2014). Explaining dimensions of state-level punitiveness in the United States:
The roles of social, economic, and cultural factors. Criminal
Justice Policy Review, 26(2), 751-772.
This report limits the presentation of data to these three
categories because white, Black, and Latinx individuals
comprise the vast majority of people in prison.
Mauer, M. & King, R. (2007). Uneven justice: State rates of
incarceration by race and ethnicity. The Sentencing Project;
Nellis, A. (2016). The color of justice: Racial and ethnic disparity in state prisons. The Sentencing Project.
U.S. Census Bureau (2020) Age, sex, race, and Hispanic origin--6 race groups. (SC EST2019-ALLDATA6). U.S. Census.
We observe that 41% of people in state prisons are white,
39% are Black, and 17% are Latinx, a contrast with the
overall general population where 76% are white, 13% are
Black, and 19% are Latinx. In 12 states more than half of
the prison population is African American. Though the reliability of data on ethnicity is not as strong as it is for race
estimates, the Latinx population in state prisons is as high
as 60% in New Mexico, and over 40% in both Arizona and
in California. However, viewing the composition of prison
populations from this perspective only tells some of the
story of the profound difference imprisonment plays in the
lives of people of various racial and ethnic backgrounds.
In this report we present the rates of racial disparity, which
allows an analysis of the overrepresentation of people of
color in the prison system accounting for population in the
general community. This view allows one to see the odds
of imprisonment for individuals in various racial and ethnic
categories.
Sabol, W. J., Johnson, T. L., & Caccavale, A. (2019). Trends
in correctional control by race and sex. Council on Criminal
Justice.
National Research Council (2014). The growth of incarceration in the United States: Exploring causes and consequences. The National Academies Press.
This observation is documented elsewhere as well. See,
for example, Blumstein, A. (1993). Racial disproportionality
revisited. University of Colorado Law Review, 64, 743-760;
Mauer, M. (1997). Intended and unintended consequences:

22 The Sentencing Project

14.

15.
16.

17.

18.

19.
20.

21.

State racial disparities imprisonment. The Sentencing Project; Bridges, G. & Crutchfield, R.D. (1982). Law, social standing and racial disparities in imprisonment. Social Forces,
66(3), 699-724.
Data from Massachusetts used this report should be interpreted with caution. The system of incarceration in Massachusetts is somewhat unique in that this state uses county-level houses of corrections to hold some people who
have been convicted of felonies and sentenced up to 2.5
years. The population of prisoners in houses of corrections
is approximately 275, but the racial composition of those
incarcerated at these institutions is not publicly reported.
For this reason, estimates in this report do not include
those in houses of corrections. As a result, the rates of incarceration by race and ethnicity are underestimated. For
more on the composition of Massachusetts prison system,
see: Massachusetts Department of Corrections (2019).
Weekly Count Sheets.
Massachusetts is an exception, with a rate of Black imprisonment of 466 per 100,000 residents.
Blumstein, A. (1993). Racial disproportionality of U.S. prison populations revisited. University of Colorado Law Review
64(3), 743-760; Bridges, G., & Crutchfield, R. D. (1988). Law,
social standing and racial disparities in imprisonment. Social Forces 66(3), 699-724; Mauer, M. (1997). Intended and
unintended consequences: State racial disparities in imprisonment. The Sentencing Project; Sorenson, J., Hope, R., &
Stemen, D. (2003). Racial disproportionality in state prison
admissions: Can regional variation be explained by differential arrest rates? Journal of Criminal Justice 31, 73-84;
Mauer, M., & King, R. (2007). Uneven justice: State rates of
incarceration by race and ethnicity. The Sentencing Project;
Tonry, M. (1994). Racial disproportions in US prisons. British Journal of Criminology 34(1) 97-115; Tonry, M. (2011).
Punishing race: An American dilemma continues. Oxford
University Press.
Garland, B., Spohn, C., & Wodahl, E. (2008). Racial disproportionality in the American prison population: Using the
Blumstein method to address the critical race and justice
issues of the 21st Century. Justice Policy Journal, 5(2),
1-42.
Blumstein, A. (1982). On the racial disproportionality of
United States’ prison populations. The Journal of Criminal
Law and Criminology, 73(2), 1259-1281.; Garland, B., Spohn,
C., & Wodahl, E. (2008). Racial disproportionality in the
American prison population: Using the Blumstein method
to address the critical race and justice issues of the 21st
Century. Justice Policy Journal, 5(2), 1-42.
Blumstein, A. (1993). Racial disproportionality of U.S. prison populations revisited. University of Colorado Law Review, 64(3), 743-760.
Baumer, E. (2010). Reassessing and redirecting research
on race and sentencing. [Unpublished manuscript]. School
of Criminal Justice, University at Albany; Tonry, M. (2011).
Punishing race: An American dilemma continues. Oxford
University Press.
Bosick, S. J. (2021). Racial disparities in prosecutorial outcomes. Sonoma State University.

22. Blumstein, A. (1982). On the racial disproportionality of
United States’ prison populations. The Journal of Criminal
Law and Criminology, 73(2), 1259-1281.; Garland, B., Spohn,
C., & Wodahl, E. (2008). Racial disproportionality in the
American prison population: Using the Blumstein method
to address the critical race and justice issues of the 21st
Century. Justice Policy Journal 5(2), 1-42.
23. Crawford, C., Chiricos, T., & Kleck, G. (1998). Race, racial
threat, and sentencing of habitual offenders. Criminology,
36, 481-511; Spohn, C., & Cederblom, J. (1991). Race and
disparities in sentencing: A test of the liberation hypothesis. Justice Quarterly, 8, 305-327.
24. Baumer, E. (2010). Reassessing and redirecting research
on race and sentencing. [Unpublished manuscript]. School
of Criminal Justice, University at Albany; Sorenson, Hope,
and Stemen (2003); Garland, B.E., Spohn, C., & Wodahl, E.J.
(2008). Racial disproportionality in the American prison
population: Using the Blumstein method to address the
critical race and justice issue of the 21st century. Justice
Policy Journal, 5(2), 1-42.; and Bridges and Crutchfield
(1988); Tonry, M., & Melewski, M. (2008). The malign effects of drug and crime control policy on Black Americans.
In M. Tony (Ed.) Crime and Justice: A review of research,
1-44. University of Chicago Press; For a review of a number
of studies that have applied Blumstein’s formula to identify the amount of disproportionality that can be attributed
to crime, as measured by arrest, see: Garland, B.E., Spohn,
C., & Wodahl, E.J. (2008). Racial disproportionality in the
American prison population: Using the Blumstein method
to address the critical race and justice issue of the 21st
century. Justice Policy Journal, 5(2), 1-42; Mauer, M., &
King, R. (2007). Uneven justice: State rates of incarceration
by race and ethnicity. The Sentencing Project; Bridges, G.,
& Crutchfield, R. D. (1988). Law, social standing, and racial
disparities in imprisonment. Social Forces, 66(3), 699-724.
25. Armstrong, G., & Rodriguez, N. (2005). Effects of individual
and contextual characteristics on preadjudication detention of juvenile delinquents. Justice Quarterly, 22(4) 521539.
26. Wacquant; L. (2000). The new ‘peculiar institution’: On the
prison as surrogate ghetto. Theoretical Criminology, 4(3),
377-389.
27. Gottlieb, A., & FLynn, K. (2021). The legacy of slavery and
mass incarceration: Evidence from felony case outcomes.
Social Science Review, 3-35.
28. Bobo, L., & Thompson, V. (2010). Racialized mass incarceration: Poverty, prejudice, and punishment. In Doing Race: 21
Essays on the 21st Century. Hazel Markus and Paula Moya,
(Eds.) Norton; Crawford, C., Chiricos, T., & Kleck, G. (1998).
Race, racial threat, and sentencing of habitual offenders.
Criminology 36(3), 481-511; Tonry, M. (2011). Punishing
race: An American dilemma continues. Oxford University
Press.
29. Tonry, M. (2011 Punishing race: An American dilemma continues. Oxford University Press; Western, B. (2006). Punishment and inequality in America. Russell Sage Foundation.
30. These included self-report behaviors such as “threatens
to hurt people, screams a lot,” stubborn sullen, or irritable,
”sudden changes in moods and feelings,” gets in many
fights, “swearing and obscene language and “destroys
things belonging to others.”

31. Unnever, J. D. (2015). The racial invariance thesis revisited: Testing an African American theory offending. Journal
of Contemporary Criminal Justice, 1(1), 1-20.
32. Baumer, E. (2015). Reassessing and redirecting research
on race and sentencing. Justice Quarterly, 30(2), 231-261.
33. Caravelis, C., Chiricos, T., & Bales, W. (2013). Race, ethnicity, threat, and the designation of career offenders. Justice
Quarterly, 30(5), 869-894; Crawford, C., Chiricos, T., & Kleck,
G. (1998). Race, racial threat, and sentencing of habitual
offenders. Criminology 36(3), 481-511.
34. Eberhardt, J.L., Goff, P.A., Purdie, V.J., & Davies, P.G. (2004).
Seeing black: Race, crime, and visual processing. Journal
of Personality and Social Psychology, 87(6), 876-893.
35. Lundman, R. J. (2003). The newsworthiness and selection
bias in news about murder: Comparative and relative effects of novelty and race and gender typifications on newspaper coverage about homicide. Sociological Forum, 18(3),
357-386.
36. Dorfman, L., & Schiraldi, V. (2001). Off balance: Youth, race,
and crime in the news. Building Blocks for Youth.
37. Hetey, R. C., & Eberhardt, J. L. (2014). Racial disparities in
incarceration increase acceptance of punitive policies. Psychological Science, 25(10), 1949-1954.
38. Kang, J., Bennett, M., Carbado, D., Casey, P., Dasgupta,
N., Faigman, D., Godsil, R., Greenwald, A., Levinson, J., &
Mnookin, J. (2012). Implicit bias in the courtroom. UCLA
Law Review 59: 1124:1186.
39. Bobo, L. D., & Johnson, D. (2004). A taste for punishment:
Black and white Americans’ views on the death penalty and
the war on drugs. DuBois Review 1(1), 151-180.
40. Zimring, F. (2010). The scale of imprisonment in the United
States: Twentieth century patterns and twenty-first century prospects. The Journal of Criminal Law and Criminology,
100(3), 1225-1241.
41. Kutateladze, B., Andirilo, N., Johnson, B.D., & Spohn, C.C.
(2014). Cumulative disadvantage: Examining racial and
ethnic disparity in prosecution and sentencing. Criminology
52(3) 514-551.
42. Frost, N., & Clear, T. (2013). The punishment imperative: The
rise and failure of mass incarceration in America. New York
University Press.
43. Tonry, M. (2011) Less imprisonment is no doubt a good
thing: More policing is not. Criminology and Public Policy,
10(1), 137-152.
44. Fagan, J. (2010). Second supplemental report, Floyd v The
City of New York, 2013 U.S. District. LEXIS 68790 (S.D.N.Y.
2013). (08 Civ. 01034).
45. Pierson, E. et al. (2020). A large-scale analysis of racial
disparities in police stops across the United States. Nature
Human Behaviour, 4, 736-745.
46. Schnake, T., Jones, M., & Brooker, C. (2010). The history of
bail and pretrial release. Pretrial Justice Institute.
47. Spohn, C. (2000). Thirty years of sentencing reform: The
quest for a racially neutral sentencing process. In J. Horney
(Ed.), Policies, Processes, and Decisions of the Criminal Justice System, Volume 3, (427-501): page 481.
48. King, R. D., & Light, M. T. (2019). Have racial and ethnic
disparities in sentencing declined? Crime and Justice, 48,
365-419.
49. Baumer, E. (2010). Reassessing and redirecting research
on race and sentencing. [Unpublished manuscript]. School
of Criminal Justice, University at Albany.

The Color of Justice 23

50. Rothwell, J. (2015). Drug offenders in American prisons:
The critical difference between stock and flow. Brookings
Institution.
51. Tonry, M. (2014). Legal and ethical issues in the prediction
of recidivism. Federal Sentencing Reporter, Volume 26 (3),
167-176.
52. Frase, R. & Roberts, J. V. (2019). Paying for the past: The
case against prior record sentencing enhancements. Oxford
University Press.
53. Warren, P. Chiricos, T., & Bales, B. (2011). The imprisonment
penalty for young Black and hispanic males: A crime specific analysis. Journal of Research in Crime and Delinquency
49(1), 56-80.
54. Crawford, C., Chiricos, T., & Kleck, G. (1998). Race, racial
threat, and sentencing of habitual offenders. Criminology
36(3): 481-511; Caravelis, C., Chricos, T., & Bales, W. (2013).
Race, ethnicity, threat, and the designation of career offenders. Justice Quarterly 30(5), 869-894.
55. Chen, E. (2008). The liberation hypothesis and racial and
ethnic disparities in the application of California’s Three
Strikes Law. Journal of Ethnicity in Criminal Justice, 6(2),
83-102.
56. Bridges, G., & Crutchfield, R.D. (1988). Law, social standing
and racial disparities in imprisonment. Social Forces, 66(3),
699-724.
57. Krivo, L., & Peterson, R. (1996). Extremely disadvantaged
neighborhoods and urban crime. Social Forces, 75(2), 619647.
58. Krivo, L., Peterson, R., & Kuhl, D. C. (2009). Segregation, racial structure, and neighborhood violent crime. American
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59. Piquero, A. R., Moffitt, T., & Lawton, B. Race differences in life course persistent offending. In D. Hawkins, & K.
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60. Hawkins, D., Laub, J., Lauritsen, J., & Cothern L. (2000).
Race, ethnicity, and serious and violent juvenile offending.
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Hsia, H., Bridges, G., and McHale, R. (2004). Disproportionate Minority Confinement: 2002 Update. Office of Juvenile
Justice and Delinquency Prevention; Nellis, A. (2015). A return to justice: Rethinking our approach to juveniles in the
system. Littlefield and Rowman.
61. Warren, P., Chiricos, T., & Bales, B. (2011). The imprisonment penalty for young Black and Hispanic males: A crime
specific analysis. Journal of Research in Crime and Delinquency, 49(1), 56-80.
62. Nellis, A. (2016). The color of justice: Racial and ethnic disparity in state prisons. The Sentencing Project.
63. New Jersey Senate Bill 677: https://www.njleg.state.
nj.us/2016/Bills/S1000/677_R3.PDF.
64. Balcerzak, A. (2020, August 4). In two years, NJ wrote only
one ‘racial impact statement’ to study criminal justice disparities. NorthJersey.com.
65. Foley, R. J. (2015, January 21). Racial-impact law has modest effect in Iowa. NorthJersey.com. and on six occasions
bills advanced even though racially disparate impacts were
estimated to ensue. https://www.northjersey.com/story/
news/politics/2015/01/21/racial-impact-law-effect-iowa-legislature/22138465/

24 The Sentencing Project

66. Mauer, M. & King, R. (2007). Uneven justice: State rates of
incarceration by race and ethnicity. The Sentencing Project.
67. This has come about during a period when the Black population in Iowa has increased substantially, which accounts
for some of this decrease.
68. Federal Bureau of Investigation. Uniform Crime Report,
2018. FBI.
69. Descano, S. (2020). I won’t prosecute adults for simple
possession of marijuana: It’s only fair. Washington Post.
70. Capitol News Service (2017). The numbers behind racial
disparities in marijuana arrests across Virginia. CNS.
71. Nagin, D. (2013). Deterrence in the 21st century. In M. Tonry (Ed.) Crime and Justice in America 1975-2025. (199264) University of Chicago Press.
72. Mauer, M. (2011). Addressing racial disparities in incarceration. The Prison Journal 91 (87S-101S).
73. Ghandnoosh, N. (2015). Black lives matter: Eliminating racial inequity in the criminal justice system. The Sentencing Project.
74. Sabol, W., Johnson, T., & Caccavale, A. (2019). Trends in
correctional control by race and sex. Council on Criminal
Justice.

The Color of Justice: Racial and Ethnic
Disparity in State Prisons
Ashley Nellis, Ph.D.
October 2021

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