Sentencing: 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.