lack of Uniformity in Criminal Sentencing

A problem faced in the criminal justice system is the lack of uniformity in criminal
sentencing. Two people who have committed the same crime could potentially receive unequal
sentencing, and not solely based on their criminal background. This essay will discuss judicial
discretion and the non-legal factors that influence sentencing decisions and reforms, as well as

show how a system of optimal decision-making could possibly be constructed. There are many


reasons behind this lack of uniformity: race, gender ethnicity, the decision maker himself, and of
course, the decision guidelines and sentencing reforms.
Race and gender are key examples of reasons which contribute to the lack of unjust
sentencing and pose great problems in regard. African Americans and women occupy a minority
of social and economic positions, and therefore their interests are less represented in the justice
system than are those of white men (Tomy & Daly, 1997). There is underrepresentation and
overrepresentation in different areas for different races and genders. While African Americans / 'D{ Svvs

are "overrepresented in arrest statistics and jail and prison populations...women are

underrepresented" (Tomy & Daly, 1997). This could be because of two things: either women
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a crime. For whatever reason this occurs, it shows that there must be something wrong within
the system; that it was formed to favor and represent white men.
While African Americans and women are the largest minorities in the United States, they
are of course not the only ones, and surely not the only ones to be sentenced u ustly. In order to
correct this error within the criminal justice system, "future policies will need to confront the













lack of Uniformity in Criminal Sentencing

lack of Uniformity in Criminal Sentencing






competing demands of justice that race and gender pose in the official response to crime" (Torny

& Daly, 1997). Disparity is linked not only to offense-related variables but also to defendant
characteristics such as ethnicity, gender, educational level, and non-U.S. citizenship. Under the
sentencing guidelines these variables are referred to as "legally irrelevant" (Albonetti 1997).
The data on gender and arrests show three patterns. Arrest rates for women are lower than
those for men (men's arrest rates are over four times greater than women's), men's and women's
arrests rates are both high for DUI, larceny-theft, and others, but are low for homicide,
embezzlement and arson. Lastly, for both men and women, arrest rates have increased over the
past years. There are also several statistical patterns which can be observed between African
Americans and whites. The race-gender hierarchy (from most to least likely to be arrested) is:
African American men, white men, African American women, and lastly, white women.
(Robinson & Spellman, 2005). \ (\ ?
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Whoever decides the sentencing has a great deal in determining if the sentence will be just
or unjust, and a large part of this sentencing debate revolves around the issue of who should make
the sentencing decisions. The top five decision-makers are judges, juries, legislatures, sentencing
commissions, and parole boards. By traditional practice, judges are given broad discretion to
sentence anything below the statutory maximum. In many systems, however, the parole board
does a lot which shifts more power to them: independent assessments before the convict arrives at
jail, and setting the presumptive release dates. As expected, everyone believes that they are better
suited to make sentencing decisions and all have many supporters: legislators, judges, etc. It was,
however, stated thudges are "institutionally well suited", better than the legislature or sentencing
commissions, because of a "combination of perspective, process and
Lack of Uniformity in Criminal Sentencing
politics.''There is also a lot of support for t l ntencing commissions (Robinson & Spellman,


2005), however this may be a case of opinion and not facts alone.

In order to apply decision rules to a case, the decision maker must basically recreate past
events in order to figure out the who, what, when, how and why of the situation. Then, of course,
state of mind has to be taken into account, as it also has a tremendous affect on sentencing
decisions. This can only be resolved by normative judgments and not solely case facts (Robinson
& Spellman, 2005).

Federal guidelines were put into place but have failed due to structural flaws that can only
be mended with fundamental reform which can be traced to the breakdown of the institutional
balance the Sentencing Reform Act was supposed to create. The complex sentencing stance has
given Congress and the Justice Department a motive for constant intervention into making
sentencing rules. The complexity and stiffness of the guidelines have constrained judicial
sentencing judgment, thereby increasing the ability to influence a defendant's sentence

(Bowman, 2005).

The early sentencing reform movement emerged from a race-centered civil rights
movement and from the prisoners' rights movement that began in the 1960's" (Robinson &
Spellman, 2005). The Sentencing Reform Act of 1948, SRA, created the U.S. Sentencing
Commission which officially proclaimed the federal sentencing guidelines. New sentencing
guidelines which were adopted in 1987, clearly linked sentencing to "relevant conduct"-crime
characteristics-and looked to abolish unnecessary sentence inequality (Albonetti
1997). Many believe that the federal sentencing guidelines system has failed (Bowman, 2005), in
result it created a criminalization and sentencing process that is greatly controlled by the
Lack of Uniformity in Criminal Sentencing
prosecutor, though these guidelines significantly reduced legal discretion (Albonetti 1997). It too


often results in bad outcomes in individual cases as well as whole classes of cases,

and in addition the basic structure of the "guideline-centered system" evolved in a way that
makes self-correction impossible --the SRA was intended to distribute the power, while the
sentencing commission was created to gather feedback on how the system worked (Bowman,
2005).

A system of optimal decision-making could possibly be constructed by having less people
involved in making or reforming the sentencing rules. The sentencing stance needs to be made
more simple so that Congress and the Justice Department stand back from constant intervention
(Bowman, 2005). A large part of sentencing debates revolve around who should receive the
sentencing power. Giving more power to the judge because judges are "institutionally well suited"
because of a "combination of perspective, process and politics" to make better sentencing
decisions (Robinson & Spellman, 2005). Since the judge has a higher understanding of the law,
he can resolve the case by normative judgments and not solely case facts in recreating past events
in order to figure out the situation and state of mind of the convict (Robinson & Spellman, 2005).
Since the early sentencing reform movement emerged from a race-centered civil rights
movement and from the prisoners' rights movement that began in the 1960's" (Robinson &
Spellman, 2005), the interests of white men was greater represented than those of the minorities
of African Americans and women, who occupy minor social and economic positions (Torny &
Daly, 1997). In order to alter this, future policies would need to confront the competing demands
lack of Uniformity in Criminal Sentencing






of justice that race and gender pose in the official response to crime (Tomy & Daly, 1997).
Disparity, however, is linked to defendant characteristics as ethnicity, gender,
educational level, and not obtaining citizenship, which are specified as "legally irrelevant"
(Albonetti 1997), so making these characteristics legally relevant would be part of creating a
system of optimal decision-making.
In addition, structural flaws within the federal guidelines can only be mended with
fundamental reform which traces to the institutional balance the Sentencing Reform Act was
supposed to create (Bowman, 2005).
In conclusion, there are many factors contributing to the lack of uniformity in criminal
sentencing. One factor may be race, gender, or ethnicity, which mostly focuses on African
Americans and women. Another factor is the decision maker, which we know to be the judge,
but as was discussed above has much control taken by the parole board. The last factor would be
the law itself, federal guidelines, sentencing acts, etc. Reforms have been put into play yet there
are still too many people involved in making sentencing rules. Discussed above were the ways in
which to fix the lack of uniformity in criminal sentencing.