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Disparity in Sentencing: The Plague of Criminal Inequality in the United States

Alivia Watson

Weber State University

English 2015 Intermediate College Writing and Research

Rebecca Miner

22 November 2022
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Disparity in Sentencing: The Plague of Criminal Inequality in the United States

Today, there are over 2.4 million Americans in prison and studies estimate that between

4-6% of those are actually innocent. This indicates that 1 in 20 criminal cases results in a

wrongful conviction, meaning about 120,000 innocent people are serving time. Many have been

locked up for offenses ranging from possession of illegal substances to murder, and in the past

few decades, their sentences have become excessively long. These sentences are often unfair,

despite being wrongfully convicted or not, and are based on factors such as race/ethnicity,

gender, social status, mental illness, and more. These factors have been shown to act as a basis

for inconsistent punishments, often without thought. Still, even today, they continue to threaten

the equality of criminal sentences throughout the country.

Take the case of two women from Ohio for example: A white woman stole nearly $250K

and was granted two years probation, whereas when a Black woman stole $40K, she was

sentenced to almost two years in prison. On the other hand, take the case of Marion Hungerford,

a 57-year-old woman with no criminal history and who had never touched a gun was sentenced

to 159 years in federal prison. She played an extremely limited role in a string of armed robberies

carried out by her male roommate, Dana Canfield, that resulted in less than $10,000 and caused

no physical harm to anyone. This may sound extreme, but what’s more is the fact that the judge

on Hungerford’s case was “not allowed” to consider numerous factors, including her severe form

of borderline personality disorder, her many suicide attempts due to schizophrenia, or even a

psychiatrist’s testimony of her mental state and desperate situation. Unlike the first case, this

sentence was not inconsistent because of race or privilege, this was based on the fact that there

are little to no laws concerning certain aspects of sentencing or limits on a judge’s power.
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Disparities of sentencing guidelines like these within the justice system have resulted in a wide

spectrum of inconsistent punishments, and therefore threaten the equality of criminal sentencing

across the United States. To this day, there is still little being done to combat this issue, but

providing education regarding sentencing factors, implementing more mandatory guidelines

rather than advisory, and regulating state and federal laws will all aid in expanding and

improving sentencing outcomes now and in the future.

The Factors

Many factors contribute to inconsistent sentencing outcomes. They are things like race,

gender, socioeconomic status, geography, criminal history, and more. Sentencing within our

society has generally been weighted heavily on the color of one’s skin and ethnicity, and this

continues to be one of the biggest causes of disparity.

According to the World Prison Brief, the United States currently has the second-largest

prison population in the world, with an incarceration rate of about 505 inmates per 100,000

people. Within that number, the rate of white people is 450 inmates per 100,000 people, and the

rate of black people is over five times higher, at 2,306 inmates per 100,000 people. The United

States Sentencing Commission reports that on average, black men, who commit the same crimes

as white men, generally receive sentences that are almost 20% longer. These cases are not

uncommon, in fact, they occur very frequently.

While researching related cases, I came across the story of Walter McMillan while

reading Just Mercy by Brian Stevenson. In 1986, an 18-year-old white woman was murdered in

Alabama and the case went unsolved for almost six months when police began focusing on

McMillan. He had no prior criminal history and was self-employed, but he’d recently had an
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affair with a married white woman, which put him directly in their sights. In another county, a

white man was accused of crimes and pressured to make false statements accusing McMillan of

murder. Because of the incredible racism of the county sheriff, he charged McMillan with capital

murder and arranged for him to be placed on death row even before his trial, 15 months later.

Although dozens of Black people testified to his innocence during the trial, they were ignored by

the mostly-white jury. They sentenced him to life in prison without parole, but this sentence was

later overridden to impose the death penalty. He spent six years in his cell on death row. Bryan

Stevenson found evidence proving his innocence and fought for over six years until McMillan’s

conviction was ruled unconstitutional. He was released from death row as a free man in March

1993.

This case is one of many where an innocent person was robbed of their life because of a

wrongful conviction based solely on racism, status, and/or location. Our society has indeed made

incredible progress concerning racial equality, but it continues to remain in question within the

justice system because of outdated laws and guidelines. The USSC says that sentencing decisions

based on factors like these contribute largely to the disproportionate rates of Black versus white

inmates in the United States. Christopher Ingraham of the Washington Post says that at the

federal level, “simply eliminating the sentencing disparity would reduce the number of black

men in federal prisons by about 9 percent.” Whether a conviction is like this example, based on

race, or whether it’s on any of the other factors, the problem remains the same. Sentences

throughout history have been inconsistent and often unfair, therefore fracturing not only the

definition of justice itself but also our confidence in the system.

The Judges
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Jon E. Newman, a former United States attorney, and district judge, wrote in the

American Bar Association Journal, “Sentencing is the one function given to judges on which

there is, for all practical purposes, no law.” Within the journal, Newman shares his experience as

a judge and his observations on disparity within the system. He goes on to say, “The criminal

justice system is permeated with discretionary decisions-the police’s decision whether to arrest,

the prosecutor’s decision whether to prosecute, the judge’s decision as to the sentence on a

finding of guilt, and the parole board’s decision on when to release the prisoner.” Recently, the

USSC reported that sentencing disparities are being driven largely by “non-government

sponsored departures and variances,” which simply refers to sentencing choices made by judges

at their discretion. While sentencing guidelines have been issued, there continue to be no specific

limits on the power of a judge. When determining a sentence, there seems to be a rise in

departures from these guidelines, but “disparity could also arise within the guidelines.”

(Painter-Davis, 2019) The main issue with these guidelines is their broad ranges and the failure

of lawmakers to specify what criteria are to be used when selecting a sentence within those

ranges. United States v. Booker was a case in 2005 that addressed black-and-white sentencing

disparities on the account of the judge. Booker “gave federal judges significantly more discretion

on sentencing by making it easier to impose harsher or more lenient sentences than the USSC’s

sentencing guidelines called for.” (Ingraham, 2017) Because of this added discretion, Ingraham

says that it allows more racial bias to step in, therefore contributing largely to inconsistent

sentences.

In his article, Discretion and Disparity under Sentencing Guidelines Revisited: The

Interrelationship between Structured Sentencing Alternatives and Guideline Decision-making,

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Noah Painter-Davis addresses racial disparity and talks about deviations in sentencing. He says

that while judges are required to consider the basic guidelines, they are still able to deviate either

downward for a more lenient sentence or upward for added severity. From his research, he

concluded that Blacks and Latinos tend to be the most disadvantaged in these decisions because

they are “less likely to receive downward departures to nonincarceration sentences or to shorter

incarceration sentences and more likely to receive upward departures that result in longer

sentence lengths than Whites.” Although these facts generally focus on race, his studies also

show that gender and criminal history have large effects as well.

There is a phenomenon in the world of sentencing that is generally called the “Slovik

syndrome.” It refers to Eddie Slovik, a United States Army soldier during WWII who was

court-martialled and executed for desertion in 1945. Although over 21,000 other soldiers were

given varying sentences for desertion, including 49 death sentences, his was the only one that

was carried out. When the decision-making of his sentence was reviewed, it revealed that when

the sentence was imposed, there was “little expectation that it would be carried out” (Smith,

2020) by every member of the panel. They imposed the death penalty confident that at some

point, the sentence review within the military would reduce the sentence, but it never did. The

extremity and randomness of this case are not very different from the death penalty today: in

2018 there were around 15,500 murders in the U.S., but only 25 executions were carried out.

Smith says in his article, The Slovik Syndrome, “The broader point, though, which gives its

name to the ‘Slovik Syndrome’ is the absent sense of responsibility among those imposing a

death sentence -- a constant passing of the buck.” Even today, judges will frequently impose

longer sentences with an expectation that the sentence will not be carried out in full. Often, this
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expectation is correct, but occasionally, there are cases like that of Slovik, which are unexpected

and unfortunate. Decisions like these, even when they aren’t as common, contribute largely to

sentencing disparities. Judges will vary in their expectations of what parole boards will do,

meaning that this “syndrome” could affect each to a different degree, further resulting in

inconsistent sentences.

The Guidelines

Sentencing guidelines are a “set of standards that are generally put in place to establish

rational and consistent sentencing practices within a particular jurisdiction.” (Frase, 2018) Before

Congress passed legislation that led to the creation of federal sentencing guidelines in 1984,

there were very few limits and restrictions within the court to sentence a criminal. They are made

and regulated by the United States Sentencing Commission, whose goal is to “reduce sentencing

disparities and promote transparency and proportionality in sentencing.” The USSC published an

overview of the guidelines, which talks about how they work, adjustments, the guideline range,

and more. Within the court, the role of a judge is to “interpret and apply standards that

lawmakers have developed.” They follow these guidelines as a basis for sentencing decisions.

The Commission consists of seven voting members appointed by the President and confirmed by

the Senate, and is advised by groups representing the views of practitioners, probation officers,

victims, and tribal lands. In the ABA Journal, Newman emphasizes that determining sentencing

guidelines needs to be a continuing process and should have a “diverse membership representing

the public at large and the disciplines relevant to sentencing choices.” He includes that the views

of prosecutors, defense attorneys, judges, psychiatrists, and others should be considered when

outlining these guidelines. When his article was published in the ABA Journal, the USSC did not
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exist. When talking about a future commission, he wrote that having a system of guidelines

“offers genuine hope for real improvement.”

Aside from basic guidelines for judges to follow when determining a sentence, Congress

has set “mandatory minimum sentences.” These require the court to give an automatic minimum

prison term for certain crimes. Most apply to drug offenses, but Congress has enacted them for

other crimes, such as gun, pornography, and economic offenses. The Leadership Conference on

Civil and Human Rights says that these minimums “undermine our nation’s commitment to

justice and fairness by preventing judges from taking into account the individual’s background

and the circumstances of his/her offenses” when determining sentences. They continue by saying

that these laws “disproportionately impact people of color, have caused our prison populations to

soar, and have led to overcrowding and exorbitant costs to taxpayers.” Today, prosecutors use

mandatory minimums in over half of all federal cases where many of the charges result in Black

individuals spending more time in prison than whites for the same crimes. Studies show that

prosecutors use these minimums 65% more often against Black individuals. One of the goals of

having these laws was to promote community safety, but they have been shown to have the

opposite effect. Professionals say that “incarceration is inherently criminogenic.” For example,

Florida experienced a 50% spike in crime after enacting these laws. (Siegler, 2021) Even

considering these effects, the Department of Justice continues to pursue mandatory minimums.

Siegler continues in her article that efforts from the Department of Justice to reform the laws

would only be a temporary fix and that congressional action is needed to “shift the paradigm and

mitigate racial inequality.”

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Aside from things that need to change to ensure sentencing equality, one could argue that

there are things already being done, such as including the incorporation of IPs, or “immediate

punishments.” These are methods of alternative punishment that don’t involve incarceration,

including drug treatment, electronic monitoring, community service, and probation.

Painter-Davis says that the use of IPs has “increasingly allowed for individualized sentences that

pursue other goals such as victim restoration and offender treatment.” One of the main goals of

the Criminal Justice System is to “help offenders return to society as law-abiding citizens,” and

the use of IPs can aid in achieving this goal.

The wide spectrum of criminal sentences in the United States is ultimately the result of

inconsistencies within the Criminal Justice System. The actions and power limitations of a judge

contribute largely to a broad variety of sentences that are often unfair, based on race, privilege, or

location. Guidelines have been established regarding sentencing, but many of them fail to

represent the public at large, specifically minority groups. Presently, our system is falling short of

the mandate to keep communities safe, foster prevention and rehabilitation, and ensure fair and

equal justice. Many state governments have begun improving their justice systems, but real

change lies on the shoulders of the federal government. People and governments alike have

proposed solutions and ways to improve our system, and each begins the same -- with the people.

It is vital to have a deep knowledge of the factors that play into a sentencing decision, like race,

gender, socioeconomic status, geography, and more. By regulating guidelines on the state and

federal levels, sentencing will begin to be more equal as more specified systems of guidelines are

enforced. Doing these things will all aid in improving our system now and in the future. But still,

more is needed to move from positive trends in our society to transformative and lasting change.
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References

Demographic differences in sentencing. United States Sentencing Commission. (2021, January

13).

Flexon, J. L. (2012). Racial disprities in captial sentencing: Prejudice and discrimination in trhe

jury room. LFB Scholarly Publishing LLC.

Frase, R. S. (2022, May 17). What are sentencing guidelines? Robina Institute of Criminal Law

and Criminal Justice.

Ingraham, C. (2021, November 24). Black men sentenced to more time for committing the exact

same crime as a white person, study finds. The Washington Post.

Newman, J. (1977) A better way to sentence criminals. American Bar Association

Journal, 63(11), 1562-1567.

Painter-Davis, N., & Ulmer, J. T. (2020). Discretion and disparity under sentencing guidelines

revisited: The interrelationship between structured sentencing alternatives and guideline

decision-making. The Journal of Research in Crime and Delinquency, 57(3), 263-293.

Smith, C. S. (2020, April 28). The Slovik syndrome. Reprieve.

(2020, January 23). Walter McMillian. Equal Justice Initiative.