Sentencing: Disparity

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.