Publication Date

10-2016

Journal

Virginia Law Review

Abstract

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended consequences for the structure of sentencing. Focusing on outcomes centralizes power and draws it up to higher levels of government, sacrificing the checks and balances, disaggregation, experimentation, and localism that are practically baked into sentencing's constitutional framework. More flexible, process-oriented notions of equality might better give effect to a range of competing punishment considerations while still policing punishments for bias or arbitrariness. They also could bring useful nuance to equality debates that swirl around restorative justice, California's Realignment experiment, federal use of fast-track plea agreements, and other contemporary sentencing practices.

Volume

102

Issue

6

First Page

1447

Last Page

1522

Publisher

University of Virginia School of Law

Disciplines

Civil Rights and Discrimination | Criminal Law | Criminal Procedure | Food and Drug Law | Law | Law and Race | Law Enforcement and Corrections

Download

Share

COinS