Critics of the sentencing process contend that unrestrained discretion results in sentencing disparity. They contend that judges who are not bound by sentencing rules or guidelines, but who are free to fashion sentences as they deem appropriate, often impose different sentences on similarly situated offenders or identical sentences on offenders whose crimes and characteristics are substantially different. As Judge Marvin Frankel charged in his influential book Criminal Sentences: Law Without Order, unstructured discretion leads to "lawlessness" in sentencing.
Allegations of "lawlessness" in sentencing reflect concerns about discrimination as well as disparity. Although these terms are sometimes used interchangeably, they are significantly different. Disparity refers to a difference in treatment or outcome, but one that does not necessarily result from intentional bias or prejudice. As the Panel on Sentencing Research noted, "[Sentencing] disparity exists when 'like cases' with respect to case attributes—regardless of their legitimacy—are sentenced differently" (Blumstein et al., p. 72). Discrimination, on the other hand, is a difference that results from differential treatment based on illegitimate criteria, such as race, gender, social class, or sexual orientation. With respect to sentencing, discrimination exists when illegitimate or legally irrelevant defendant characteristics affect the sentence that is imposed after all legally relevant variables are taken into consideration. It exists when black and Hispanic offenders are sentenced more harshly than similarly situated white offenders or when male offenders receive more punitive sentences than identical female offenders.
Types of disparity
Sentencing disparities reveal both intra- and inter-jurisdictional differences. Judges in a particular jurisdiction, for example, may have differing perceptions of crime seriousness or may give greater or lesser weight to legally relevant factors such as the seriousness of the crime and the offender's prior criminal record, with the result that similar offenders sentenced by different judges receive substantially different sentences. If, for example, some judges routinely send all armed robbers with no previous felony convictions to prison while others typically sentence all such offenders to probation, the result would be intra-jurisdictional sentencing disparity. A similar outcome would result if some judges routinely hand out either substantially harsher or substantially more lenient sentences than their colleagues on the bench. In both cases, the severity of the sentence the offender gets rests in part on the judge who imposes it.
The sentencing patterns of judges in different jurisdictions also may vary. Certain categories of crimes may be viewed as more serious, and certain types of offenders perceived as more dangerous, in some jurisdictions than in others. For example, offenders convicted of serious felonies may be sentenced more leniently in large urban court systems, where such crimes are fairly common, than in rural areas, where misdemeanors and less serious felonies dominate the court docket. Similarly, blacks who victimize whites may be sentenced more harshly than other categories of offenders in southern jurisdictions, no differently than other offenders in non-southern jurisdictions. These geographic or regional variations in sentence outcomes signal inter-jurisdictional disparity. The harsher sentences imposed on black offenders in southern jurisdictions also may be indicative of racial discrimination in sentencing.
A third type of sentence disparity is intra-judge disparity. This type of disparity occurs when an individual judge makes inconsistent sentencing decisions; that is, he or she imposes different sentences on equally culpable offenders whose crimes are indistinguishable. Although these sentence variations might be attributable to subtle, and thus not easily observed or measured, differences in crime seriousness and offender blameworthiness, they also might be due to intentional bias on the part of the judge. An individual judge who believes that black and Hispanic offenders are particularly dangerous and especially likely to recidivate may impose harsher sentences on these types of offenders than on otherwise identical white offenders. Similarly, a judge who is concerned about the "social costs" of incarcerating female offenders with young children may refuse to send such offenders to prison, but may not hesitate to incarcerate similarly situated male offenders. These types of intra-judge sentencing disparities, then, may signal the presence of discrimination based on race, gender, social class, or other legally irrelevant defendant characteristics.
Not all sentencing disparities are unwarranted. Although one might question the fairness of a system in which the sentence an offender receives depends upon the jurisdiction where the case is adjudicated, jurisdictional differences in values and in attitudes toward crime and punishment might foster sentencing disparity. Variations in laws and in criminal justice resources might have a similar effect. At the state level, the judge's discretion at sentencing is constrained by the penalty range established for crimes of varying seriousness by the state legislature. In one state, for example, the presumptive sentence for burglary might be five to seven years, while in another state the range might be from seven to ten years. The fact that an offender convicted of burglary in the first state received five years, while a seemingly identical offender convicted of burglary in the second state got seven years, is not indicative of unwarranted disparity. In each instance, the judge imposing the sentence determined that the offender deserved the minimum punishment specified for the particular crime.
Within-state sentencing disparities also are to be expected. Judges, many of whom are elected or appointed by the governor or some other public official, share at least to some degree the values and attitudes of the communities in which they serve. The fact that sentences for minor drug offenses are harsher in some jurisdictions than in others may simply reflect the fact that different communities (and thus the judges on the bench in those communities) have differing beliefs about the appropriate penalty for this type of crime. Principled and thoughtful judges sitting in different jurisdictions, in other words, might come to different conclusions about the appropriate punishment for identical offenders.
The legitimacy of intra-jurisdictional sentencing disparities is more questionable. One might argue that some degree of disparity in the sentences imposed by judges in a particular jurisdiction is to be expected in a system that attempts to individualize punishment and in which there is not universal agreement on the goals of sentences. As long as these differences resulted from the application of legitimate criteria and reflected fundamental differences regarding the purposes of punishment, they might be regarded as warranted. Alternatively, it could be argued that justice demands that similarly situated offenders convicted of identical crimes in the same jurisdiction receive comparable punishments. To be fair, in other words, a sentencing scheme requires the evenhanded application of objective standards. Thus, the amount of punishment an offender receives should not depend on the values, attitudes, and beliefs of the judge to whom the case is assigned.
Regardless of how this issue is resolved, it is clear that sentencing disparities that result from the use of illegitimate criteria are unwarranted. This would be true of sentencing disparities between jurisdictions as well as those within jurisdictions. In fact, much of the criticism of sentencing disparity centers on the issue of discrimination based on race, ethnicity, gender, and social class. Allowing judges unrestrained discretion in fashioning sentences, it is argued, opens the door to discrimination, with the result that racial minorities are sentenced more harshly than whites, men are sentenced more harshly than women, and the poor are sentenced more harshly than the non-poor.
Studies documenting illegitimate disparities
The evidence regarding the extent of discrimination in sentencing is equivocal. With respect to discrimination based on the race/ethnicity of the offender, for example, some studies find that blacks and Hispanics are sentenced more harshly than whites, while others conclude that racial disparities disappear once crime seriousness and prior criminal record are taken into consideration. Still other studies reveal that the effect of race/ethnicity is confined to certain types of offenders, certain types of crimes, and certain types of circumstances. One study, for example, found that young, black males received substantially more severe sentences than any other type of offender (Steffensmeier et al.). Researchers also have concluded that blacks who murder or sexually assault whites are singled out for harsher treatment (Baldus et al.; LaFree), that black and Hispanic drug offenders are sentenced more harshly than white drug offenders (Albonetti), and that pretrial detention and going to trial rather than pleading guilty increase sentence severity more for racial minorities than for whites (Chiricos and Bales; Ulmer). Racial/ethnic discrimination in sentencing, in other words, is contextual rather than systematic.
The evidence with respect to gender discrimination is less contradictory. In fact, theoretically informed and methodologically rigorous studies conducted in diverse jurisdictions and focusing on a variety of offenses consistently find that women are less likely than men to be sentenced to prison; a number of studies also find that the sentences imposed on women are shorter than those imposed on men (for a review of this research, see Daly and Bordt). Although some studies conclude that preferential treatment is reserved for white females, others find that all female offenders, regardless of race/ethnicity, are sentenced more leniently than male offenders. Explanations for the more lenient treatment of female offenders generally focus on the fact that judges tend to view male offenders as more blameworthy, more dangerous, and more threatening than female offenders. There also is evidence that judges' assessments of offense seriousness and offender culpability interact with their concerns about the practical effects of incarceration on children and families to produce more lenient sentences for "familied" female defendants (Daly).
Allegations of disparity and discrimination have been leveled at aspects of the criminal justice system other than sentencing. In fact, some commentators contend that sentencing disparities are merely "the tip of the iceberg" and emphasize the importance of examining discretionary decisions made earlier in the process. The police officer's decision to arrest or not and the prosecutor's decision to file charges or not are both highly discretionary decisions that typically are not subject to review. Although the plea bargaining process may be governed by the informal norms of the courtroom workgroup or by formal office policies, it, too, is characterized by a considerable amount of discretion. Decisions regarding bail and pretrial release, while structured to some extent by bail guidelines or schedules and by statutes or policies concerning preventive detention, also are discretionary. At each of these decision points, discretion creates the potential for disparity and discrimination. This is particularly troublesome, given the fact that these early decisions themselves affect the sentence that is eventually imposed. Defendants arrested for and charged with more serious crimes are sentenced more harshly, as are those who are unable to negotiate a favorable plea or who are detained prior to trial. Disparity and discrimination at the front end of the criminal justice system, in other words, can result in "cumulative disadvantage" (Zatz) for certain categories of defendants at sentencing.
Sentencing disparity and sentence reform
Concerns about disparity and discrimination in sentencing led to a "remarkable burst of reform" (Walker, p. 112) that began in the mid-1970s and continues today. The focus of reform efforts was the indeterminate sentence, in which an offender received a minimum and maximum sentence and the parole board determined the date of release. Under indeterminate sentencing, which is still used in about half of the states, the judge was to individualize punishment by tailoring the sentence not just to the seriousness of the offense but also to the offender's unique characteristics and circumstances, including his or her potential for rehabilitation. Likewise, the parole board's determination of when the offender should be released rested on its judgment of whether the offender had been rehabilitated or had served enough time for the particular crime. Under indeterminate sentencing, in other words, discretion was distributed not only to the criminal justice officials who determined the sentence, but also to corrections officials and the parole board. The result of this process was "a system of sentencing in which there was little understanding or predictability as to who would be imprisoned and for how long" (Bureau of Justice Assistance, p. 6).
Both liberal and conservative reformers challenged the principles underlying the indeterminate sentence, and called for changes designed to curb discretion and reduce disparity and discrimination. Liberal reformers argued that judges and corrections officials should not be given unfettered and unreviewable discretion in determining the nature and extent of punishment; they were particularly apprehensive about the potential for racial bias under indeterminate sentencing schemes. They asserted that "racial discrimination in the criminal justice system was epidemic, that judges, parole boards, and corrections officials could not be trusted, and that tight controls on officials' discretion offered the only way to limit racial disparities" (Tonry, 1995, p. 164). Political conservatives, on the other hand, argued that sentences imposed under indeterminate sentencing schemes were too lenient and championed sentencing reforms designed to establish and enforce more punitive sentencing standards. Their arguments were bolstered by the findings of research demonstrating that most correctional programs designed to rehabilitate offenders and reduce recidivism were ineffective (Martinson).
After a few initial "missteps," in which jurisdictions attempted to eliminate discretion altogether through flat-time sentencing (Walker, p. 123), states and the federal government adopted determinate sentencing proposals designed to control the discretion of sentencing judges. Many jurisdictions adopted presumptive sentence structures that offered judges a limited number of sentencing options and that included enhancements for use of a weapon, presence of a prior criminal record, or infliction of serious injury. These systems vary widely in the amount of discretion allotted to judges. California's Uniform Determinate Sentencing Law, which was adopted in 1976, is one of the more restrictive laws. It classified offenses into four categories of seriousness and established a presumptive sentence, an aggravated range, and a mitigated range for each category. In the absence of aggravating or mitigating circumstances, the judge is to impose the presumptive sentence. At the other extreme, the determinate sentencing statutes adopted in Maine and Illinois give judges wide discretion to determine the appropriate sentence. The legislation enacted in Illinois in 1977 established a fairly wide sentence range for each of six categories of offenses. Offenders convicted of Class X offenses (the most serious offenses, excluding murder), for example, could be sentenced to prison for anywhere from six to thirty years, and enhancements for aggravating circumstances such as use of a weapon could result in a sentence that ranged between thirty and sixty years. The determinate sentencing laws enacted in other states generally fall between these two extremes.
During this early stage of the reform movement, parole release also came under attack. A number of states and the federal system initially adopted guidelines that parole boards were to use in determining whether an offender should be released or not. These guidelines typically were based on the seriousness of the offense and the offender's prior criminal record, and on an assessment of the offender's risk of recidivism. Other states (and eventually the federal system) abolished parole release altogether. In these jurisdictions the offender is automatically released at the end of the term, less credit for good behavior.
Other sentence reforms include voluntary and presumptive sentencing guidelines. During the late 1970s and early 1980s a number of states experimented with voluntary or advisory guidelines, so-called because judges are not required to comply with them. Michael Tonry, a professor of law at the University of Minnesota, notes that "voluntary guidelines were often created by judges in hopes that by putting their own houses in order they would forestall passage of mandatory or determinate sentencing laws" (Tonry, 1996, p. 27). Evaluations of the impact of voluntary guidelines found low compliance by judges and, consequently, little if any effect on the type or severity of sentences imposed. Most jurisdictions eventually abandoned voluntary guidelines in favor of determinate sentencing or presumptive sentencing guidelines.
The movement toward presumptive sentencing guidelines began in the late 1970s when Minnesota, Pennsylvania, and a number of other states created sentencing commissions and directed them to develop rules for sentencing that judges would be required to follow. By the mid-1980s, commission-based guidelines had been adopted in Minnesota, Pennsylvania, and Washington. In 1984, the U.S. Congress enacted legislation that abolished parole release and directed the U.S. Sentencing Commission to develop guidelines for federal sentencing; the guidelines took effect in 1987. Experimentation with commission-based guidelines continued into the 1990s. By 1996, at most half of the states had created sentencing commissions; ten states had adopted presumptive sentencing guidelines, six had implemented voluntary guidelines, and several were in the process of developing either presumptive or voluntary guidelines.
Although the guidelines adopted in different jurisdictions vary on a number of dimensions, most incorporate crime seriousness and prior criminal record into a sentencing "grid" that judges are required to use in determining the appropriate sentence. The statutes spell out the aggravating and mitigating circumstances that justify departures from the presumptive sentence. In presumptive systems, the judge must provide written justification for a departure and either the defense or the prosecution can request appellate review of sentences that do not conform to the guidelines.
Other reforms enacted at both the federal and state levels included mandatory minimum penalties for certain types of offenses, habitual offender and "three strikes" laws, and truth-insentencing statutes. All states have adopted mandatory sentencing provisions that apply to repeat or habitual offenders or to offenders convicted of crimes such as drunk driving, possession of drugs, and possession of weapons. These laws generally require the judge to sentence the offender to prison for a specified period of time; nonprison sentences, such as probation, are not allowed. A handful of states adopted "three strikes" laws that mandated life sentences for offenders convicted of a third serious felony. Other states enacted so-called "truth in sentencing" statutes designed to increase the certainty and predictability of sentencing; under this system, parole release discretion is abolished, and the sentence imposed reflects the actual amount of time an offender will serve, with very limited time credited for good behavior in prison.
The attack on indeterminate sentencing and the proposals for reform reflect conflicting views of the goals and purposes of punishment, as well as questions regarding the exercise of discretion at sentencing. The National Research Council's Panel on Sentencing Research characterized the sentencing decision as "the symbolic keystone of the criminal justice system," adding that "It is here that conflicts between the goals of equal justice under the law and individualized justice with punishment tailored to the offender are played out. . ." (Blumstein et al., p. 39). Proponents of retributive or just deserts theories of punishment, such as Andrew von Hirsch, argue that sentence severity should be closely linked to the seriousness of the crime and the culpability of the offender. Thus, those who commit comparable offenses should receive similar punishments, and those who commit more serious crimes should be punished more harshly than those who commit less serious crimes. Like cases, in other words, should be treated alike. Proponents of utilitarian rationales of punishment, including special (or individual) deterrence, incapacitation, and rehabilitation, argue that the ultimate goal of punishment is to prevent future crime and that the severity of the sanction imposed on an offender should serve this purpose. Thus, the amount of punishment need not be closely proportioned to crime seriousness or offender culpability but can instead be tailored to the defendant's unique characteristics and circumstances. (The utilitarian goal of general deterrence, like just deserts, requires that punishment be at least roughly proportional to crime seriousness (Bentham, pp. 322–338; Minnesota Sentencing Guidelines Commission, p. 12), but the need for other utilitarian measures such as incapacitation must also be considered.)
These conflicting views of the goals of punishment incorporate differing notions of the amount of discretion that judges and juries should be afforded at sentencing. A sentencing scheme based on utilitarian rationales would allow the judge or jury discretion to shape sentences to fit individuals and their crimes. The judge or jury would be free to consider all relevant circumstances, including the offender's degree of dangerousness, potential for rehabilitation, and need for deterrence, as well as "the importance of the behavioral norms that were violated, the effects of the crime on the victim, and the amalgam of aggravating and mitigating circumstances that make a defendant more or less culpable and make one sentence more appropriate than another" (Tonry, 1996, p. 3). A retributive or just deserts sentencing scheme, on the other hand, would constrain discretion more severely. The judge or jury would determine the appropriate sentence using only legally relevant considerations (essentially crime seriousness and, to a lesser extent, prior criminal record) and would be precluded from considering individual characteristics or circumstances, which are unrelated to offense seriousness and offender culpability.
The reforms enacted during the sentencing reform movement reflect both retributive and utilitarian principles. Sentencing guidelines, for example, generally are based explicitly or implicitly on notions of just deserts: punishments are scaled along a two-dimensional grid measuring the seriousness of the crime and the offender's prior criminal record. The Minnesota Sentencing Commission decided that "Development of a rational and consistent sentencing policy requires that the severity of sanctions increase in direct proportion to increases in the severity of criminal offenses and the severity of criminal histories of convicted felons" (Minnesota Sentencing Guidelines Commission, p. 1). The commission thus adopted a "modified just-deserts" model of sentencing (pp. 7–14). Other sentencing commissions are mandated to accomplish utilitarian as well as retributive goals. For example, legislation adopted in Arkansas states that the goals of the sentencing guidelines include retribution, rehabilitation, deterrence, and incapacitation. Because these goals may conflict with one another and because legislatures rarely prioritized them, sentencing commissions generally "developed guidelines using measures of offense seriousness and criminal history, leaving to the courts the discretion to aggravate and mitigate the sentence as a means of considering rehabilitation and other sentencing purposes" (Bureau of Justice Assistance, p. 42). Even in Minnesota, the commission gave sentencing judges substantial discretion to consider rehabilitation and other utilitarian sentencing rationales; moreover, the importance of these nonretributive goals has grown steadily since guidelines first became effective (Frase).
Although the sentencing reforms promulgated during the past three decades were based on diverse and sometimes contradictory principles, the overriding goal of reformers was to reduce disparity and discrimination, including racial and gender discrimination, in sentencing. The Minnesota sentencing guidelines, for example, explicitly state that sentences should be neutral with respect to the gender, race, and socioeconomic status of the offender. Reformers hoped that the new laws, by structuring discretion, would make it more difficult for judges to take these legally irrelevant factors into account when determining the appropriate sentence. They also anticipated that the reforms would produce greater consistency in the sentences imposed on comparable offenders convicted of similar crimes.
Evidence concerning the effectiveness of the sentencing reforms adopted during the past three decades is mixed. An examination of sentences imposed by judges in Minnesota before and after the implementation of guidelines, for example, showed that the impact of race, gender, and socioeconomic status declined, but did not disappear (Miethe and Moore). A series of studies conducted in Pennsylvania produced similar results. This research also demonstrated that judges were more likely to depart from the guidelines—that is, to impose probation when the guidelines called for prison or to impose a shorter sentence than called for by the guidelines—if the offender was white or was a woman (Kramer and Ulmer). Research findings such as these, coupled with the inconsistent findings of research designed to evaluate the effect of the federal sentencing guidelines, have led scholars to question the degree to which reforms have reduced sentencing disparity and discrimination. As Tonry (1996, p. 180) notes, "There is, unfortunately, no way around the dilemma that sentencing is inherently discretionary and that discretion leads to disparities."
See also Criminal Justice System; Guilty Plea: Plea Bargaining; Police: Community Policing; Police: Criminal Investigations; Police: Handling of Juveniles; Police: Police Officer Behavior; Police: Policing Complainantless Crimes; Probation and Parole: History, Goals, and Decision-Making; Prosecution: Prosecutorial Discretion; Sentencing: Allocation of Authority; Sentencing: Alternatives; Sentencing: Guidelines; Sentencing: Mandatory and Mandatory Minimum Sentences; Sentencing: Presentence Report; Sentencing: Procedural Protection; Urban Police.
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