Among the many issues to be consider by the Pennsylvania Supreme Court in this next year, one with low visibility but high impact is the question posed in this column’s title – when deciding what factors a judge may consider before imposing sentence, may a defendant’s history of arrests be considered? According to a recent Superior Court ruling now accepted for review by the Court, a decision somewhat under the radar because of it being pronounced in an unpublished decision, the answer is “yes.” What the Supreme Court should say is a resounding “no.”
What was the Superior Court’s holding?
A court may consider a defendant’s prior arrests, so long as it recognizes those arrests have not resulted in convictions. Here, the court noted that the previous “contacts” Berry has had with law enforcement did not contribute to the calculation of Berry’s prior record score. The court therefore acknowledged that these were not prior convictions. See 204 Pa. Code § 303.4 (stating that prior record score “is based on the type and number of prior convictions”). Moreover, a record of prior police involvement goes to Berry’s amenability to rehabilitation, a factor the court must consider under 42 Pa.C.S.A. § 9721(b).
Commonwealth v. Berry, 2022 Pa. Super. Unpub. LEXIS 2336, *12-13. The reasoning is wanting. Acknowledging what an arrest is “not” does not explain what it “is;” and there is no explanation of how “a record of police involvement” proves anything about amenability to rehabilitation.
Why is this ruling wrong? One easy answer is that Pennsylvania law does not include arrest history as a sentencing factor, and a second easy answer is that in the law of Evidence it has long been made clear that “an arrest is equally consistent with either guilt or innocence[,]” Commonwealth v. Scott, 436 A.2d 607, 612 (Pa. 1981), a proposition that refutes the not-amenable-to-rehabilitation argument.
But there is at least one further reason this is wrong. Arrest histories are not race neutral; instead, arrests are disproportionately visited upon people of color. As the Third Circuit explained, “reliance on arrest records may also exacerbate sentencing disparities arising from economic, social and/or racial factors. For example, officers in affluent neighborhoods may be very reluctant to arrest someone for behavior that would readily cause an officer in the proverbial “high crime” neighborhood to make an arrest.” United States v. Berry, 553 F.3d 273, 285 (3rd Cir. 2009) (citations omitted).
Compelling data back this up. Nationally, while Blacks were approximately 12.7% of the U.S. population in 2018 they were the subjects of 27.4% of the arrests that year. https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/topic-pages/tables/table-43 (last visited May 20, 2023). One year later the rate was similar – 26.6%. https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/table-43 (last visited May 20, 2023). The over-arresting of Black persons is confirmed by the prestigious National Academies of Science. Proactive Policing: Effects on Crime and Communities, Chapter 7 – Racial Bias and Disparities in Proactive Policing (2018)(The National Academies Press. https://doi.org/10.17226/24928).
The differences are particularly stark when viewed in the context of the United States population. In 2020, Blacks constituted roughly 12.4% of the population in 2020; by contrast, Whites constituted 61.6% of all people living in this nation. https://www.census.gov/library/stories/2021/08/improved-race-ethnicity-measures-reveal-united-states-population-much-more-multiracial.html (last visited May 24, 2023). Using 2015 data, if Blacks were arrested at the same rate as Whites, there should only have been 1.6 million arrests; instead, there were 3 million, nearly double.
Reliance on arrests as a sentencing consideration will permit harsher punishments for Black defendants than Whites who are otherwise demographically identical, even though the White defendants may have been as prone (or more prone) to criminal conduct but simply eluded arrest, were in less-policed communities, or benefitted from police decisions on whether to arrest or instead deal with misconduct in a non-arrest fashion. It is these data and consequences that the Court will have to consider. And these data and consequences cry out for a ban on arrest records as a sentencing factor.
The case before the Court is Commonwealth v. Berry, 16 EPAP 2023, 17 EAP 2023. This author is co-counsel on an amicus brief in support of Berry.