Sentencing: Disparity

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.