Broadly defined, sentencing disparities are inequalities in sentences received by offenders that are based on factors other than the offense. These disparities can occur in a number of ways and they can result in both lenient and severe punishments. Often, sentencing disparity is used to describe excessive sentences or unnecessary punishments. Disparity, however, implies only an inequality and does not identify whether the individual received a lenient sentence or an unnecessarily severe sentence.
Sentencing disparities can occur in many different ways and in many different places in the justice process. The first type is a disparity in sentencing referred to as the “in or out” decision. This involves the decision to place the offender in either physical custody or community release. Disparity in this part of the sentencing process could result in an offender receiving a community-based sentence who should have been placed in custody, or an individual who should have been placed in custody being released to a community-based program. A second type of disparity involves the length of time an offender is sentenced to serve; this is independent of the place to which the offender has been sentenced. In this situation, two offenders convicted of identical crimes could be sentenced to the same facility or to the same community-based program but for different lengths of time. Again, this can be an example of extraordinary lenience or excessive severity.
A third but less common type of disparity involves the specific location where the offender will be serving his or her time. If the offender is to remain in custody, then the next decision has to be where that person will do their time within the justice system. Similarly, if the decision has been made to place the offender in a community program, the next question has to be where within the community the sentence will be served. This creates the opportunity for disparity because similar offenders with similar backgrounds may find themselves in very different custodial locations. This can include persons serving sentences of approximately similar lengths, such as a person serving one year in jail and another person serving one year in prison.
The final type of disparity involves the conditions placed on the individual by the justice system. These can be conditions such as location within the correctional agency (minimum, medium, or maximum confinement) as well as the requirements for reporting, drug testing, employment, or other conditions imposed by the community corrections agency. It is important to note that these requirements are imposed by a multitude of individuals in the justice system and not solely by the judge or the court, which creates further opportunities for disparity to occur.
The foundations for sentencing disparity can be found in three areas of the criminal justice system: law enforcement, the prosecutorial agency, and the court.
Police officer discretion can easily lead to disparity in the justice system and is considered the first place where disparity occurs in the justice process. Researchers have long noted that police officer behavior can lead to some persons entering the justice system, while others observed committing the same act will either be ignored or warned, but not detained or charged. This has been especially noted in low-level cases involving juveniles where the officer simply brings the juveniles back to their respective homes and turns them over to the custody of their parents or guardians for punishment.
The prosecutorial process is the next place in the justice system where individual-level decision making can result in disparate sentences. In most, if not all jurisdictions, the prosecutor is given the duty of determining the charges that the alleged offender will face. Often, there are a range of charges that may be appropriate given the crime. For example, shoplifting could also be charged as theft, and in some jurisdictions, burglary. The discretion given to the prosecutor in the charging process may result in a very different range and type of sentences. Shoplifting typically carries a probation sentence, while theft could result in jail time, and burglary could result in a prison sentence.
Finally, judicial discretion has been shown to lead directly to sentencing disparity. In jurisdictions where sentences are not strictly defined by legislation, judges set the sentences received by the defendants. While the process varies across jurisdictions, almost all judges have some discretion in the sentencing process. Many jurisdictions set a high and low limit for each specific offense and judges are allowed to set the actual sentence within those guidelines. Occasionally, judges will go outside those guidelines and hand down what is known as an “out-of-range” sentence. This practice is considered acceptable if the sentence is justified by the judge using the facts of the case; an out-of-range sentence may be above or below the suggested range.
For example, first-degree burglary may have a sentencing range of two to six years in the state prison. If this is a first offense, the judge may sentence the offender to a year in the county jail. Conversely, if the offender has a long record of burglaries, the judge may choose to sentence him to eight years in the state prison. In both of these cases the actual crime was identical, but the sentences received were widely different. Though judicial discretion results in sentencing disparities, advocates see it as essential for a judge to be able to propose a just solution to a case. Proponents argue that some disparity may actually enhance justice, and giving all similar cases the exact same sentence would produce equality while harming individualized justice. There are factors, however, that historically have been associated with disparities that indicate injustice rather than enhanced justice.
Primary among these factors is race. Race-based disparities are suspected when no other factors are present that could explain the disparity. In many studies, racial disparity has been found to exist; however, researchers, on closer examination of the data in some of those studies, associated the disparity with past criminal history. Minority defendants had longer and more extensive criminal histories. When criminal history was statistically controlled, these researchers argued, the effect of race on sentences often disappeared.
The second type of disparity is gender disparity. In some studies, gender has been found to impact the sentencing decision, but not in a linear manner. Being female has been found (in certain places and certain criminal contexts) to diminish sentence severity and length for low-level offenses. This effect, while documented in several studies, is neither universal nor constant, and it has been shown to change with geographic location as well as over time.
A third cause of sentence disparity relates to the economic state of the defendant. This is a difficult cause of disparity to investigate because there are so many variables that interact with economic condition. Defendants who control the most economic resources are also likely to hire private attorneys to defend them, be more socially stable, and be more highly educated.
Like the economic causes of disparity, cultural disparity can also occur and is equally difficult to prove. In this case, persons are treated differently by the justice system based on their culture and how it is viewed by the dominant culture of the area. This may be especially apparent in areas where there is a little racial diversity (such as areas where the population is largely indigenous) but that population is divided culturally, not racially (such as two tribes from the same racial group where one tribe is dominant). Again, this may result in disproportionately lower sentences for those of the dominant culture and/or disproportionately higher sentences for those from the weaker, albeit similar subculture.
One of the most difficult disparities to determine, and one that represents a challenge to the foundations of the justice system, is jurisdictional disparity. This results when one jurisdictional area sentences to greater or lesser sanctions for similar offenses than other areas that are governed by the same laws. Often, this disparity is the result of structural factors that cannot be easily controlled. For example, rural jurisdictions have difficulties with sentences that involve treatment and counseling. Areas with small populations often have very few counseling opportunities, and the available counselor may be connected to the defendant in some manner (friends, relatives, or neighbors), which makes the counseling relationship problematic. Consequently, the offender may be sentenced to incarceration in a facility that offers counseling, rather than receive a sentence to a local counseling program that may ultimately prove ineffective.
Similar to economic disparity is status disparity. This is simply a disparity in sentencing resulting from the social status of the individual. Examples include famous actors, politicians, or members of the law enforcement community who receive disparate sentences because of their status rather than the facts of the case.
Another example of potential disparity located within the justice system is judicial disparity. This situation arises when a judge has a history of handing down extremely harsh sentences or perhaps lenient sentences. Finally, there is the less common, but equally problematic substantive disparity in drug cases, in which sentences are meted out on the basis of the substance in question, rather than the facts of the case. This example is most problematic in the powdered cocaine/ crack cocaine paradox. Though they are almost identical substances, until 2010, the two forms of cocaine triggered widely different sentencing; use and/or sales of crack cocaine was sentenced more harshly than that of powdered cocaine. It has been argued that this disparity is reflective of the economic status, race, and geographic location of those using the less expensive crack cocaine.
Are Sentencing Disparities Necessarily Bad?
As noted earlier, the mere presence of disparities does not indicate the presence of injustice. Disparities must be understood in terms of warranted and unwarranted disparity, and only those sentence disparities without support or foundation should be examined. For example, young offenders, first time offenders, and offenders who were “forced” into criminal conduct by circumstances beyond their control may receive more lenient sentences. While it may be disparity, it is warranted by the facts of the case.
Sometimes, the opposite may also be true, in that extra harsh sentences may be used in an attempt to control a “new” form of crime that has the potential to have a seriously deleterious effect on a community. These “crackdowns” may result in more convictions and possibly harsh sentences for those convicted.
While disparities may have a goal, they do not exist in a vacuum, and these disparities are often noted by those most impacted. The results of these disparities primarily impact society and the offenders at the social and economic levels.
Well-publicized disparities, where the sentences received are either longer or more severe than appropriate or less severe than expected, can negatively impact society. As was noted during the time of the Bloody Codes in England, excessive sentences were viewed by the public as a sign that the justice system was heartless and uncaring, which eventually resulted in the society rising up against an abusive justice system and demanding change. Disparate sentences can have the same effect at a smaller and more localized level. If the public believes that the system is biased against them, they may be less likely to follow the rules of that society. This reciprocal effect can ultimately harm the legitimacy of the justice system and increase lawlessness. Similarly, if the society observes persons with economic or socio-cultural power receiving lenient sentences, society will assume that the system is being manipulated to the benefit of the high-status offender and that justice is not being served.
The economic impacts of disparity can be both individual and communal. Longer, more serious sentences affect the ability of the offender to earn wages in a legitimate manner, thereby negatively impacting the living conditions of those who depend on that wage earner. Similarly, disparately longer sentences require more funding for the corrections system, and will unnecessarily harm the budget of the jurisdiction where the offender is being held or supervised.
Legal Responses to Sentencing Disparity
Two remedies have been used to control sentencing disparity. The first involves the creation of laws to make sentencing more equal and hopefully more fair. The second involves structural changes to the justice system that attempt to control those places in the justice process where disparity occurs.
Possibly the most important example of sentencing disparity resulted from an attempt to control a type of crime that was seen as both increasing and exceptionally detrimental to society. The genesis of this disparity dates to 1986 when the Anti-Drug Abuse Act of 1986 (the first significant piece of legislation related to the War on Drugs) was approved. This act had many provisions and goals, but one of the greatest impacts it had was on the punishment for the use and possession of crack cocaine.
This act argued that crack cocaine was far more harmful to individuals and society than the powered variety, and it responded to that belief with a substantial increase in sentences, which became many times the length of sentences received for powdered cocaine. This sentencing disparity resulted in social resistance and anger due to the fact that powdered cocaine was seen as a drug used primarily by white Americans, while crack cocaine was largely a drug used by minorities. Eventually, this disparity was acknowledged and addressed by the federal government, and in 2010, the Fair Sentencing Act was signed into law by President Barack Obama. This act readjusted the sentencing guidelines and brought the sentences for crack and powdered cocaine into closer alignment.
Along with legal remedies designed to address sentencing disparity, the justice system has also instituted structural changes that were designed to make sentencing disparity less likely. An example of this type of change involves the discretion given to prosecutors in the charging process. Some states have attempted to reduce the power given to prosecutors in the charging process by mandating, through state legislation, that certain criminal acts be charged in a manner prescribed by law. If certain elements are present at the time of the crime, the prosecutor is legally bound to charge the case in a certain manner and as a specific offense. This reduces the likelihood that the prosecutor might find the accused objectionable and decide to charge that person at a higher level than would otherwise be appropriate. This can also operate in an opposite manner, ensuring that the prosecutor does not “undercharge” an alleged offender because the person is a friend or has economic or political power.
Sentencing disparity exists. While most assume it’s a sign of a justice system that is not operating in a just manner, disparity must be examined to see if it is warranted or unwarranted, and if it is the result of legal factors or extralegal factors related to the status or the political influence of the accused. Disparities can occur at many locations in the justice system and be the result of many factors. These disparities can have seriously negative impacts on the reputation of the justice system and the willingness of the public to follow the rules created by that justice system. Sometimes, the system is faced with a set of laws that are unfair to a certain class of offender, and sentence disparity is an indication that the justice system is attempting to be fair by not following sentencing guidelines and sentencing the offender to a disparate, but appropriate, sentence.
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- Helms, R. and S. E. Costanza. “Modeling the Politics of Punishment: A Contextual Analysis of Racial Disparity in Drug Sentencing.” Criminal Justice Review, v.35/4 (2010).
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