What’s Wrong With Sentencing Equality?

Article — Volume 102, Issue 6

102 Va. L. Rev. 1447
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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.

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  Volume 102 / Issue 6  

The New Antitrust Federalism

By Rebecca Haw Allensworth
102 Va. L. Rev. 1387

What’s Wrong With Sentencing Equality?

By Richard A. Bierschbach and Stephanos Bibas
102 Va. L. Rev. 1447

The Common Law of Contract and the Default Rule Project

By Alan Schwartz and Robert E. Scott
102 Va. L. Rev. 1523

Who’s In and Who’s Out: Congressional Power Over Individuals Under the Indian Commerce Clause

By Monica Haymond
102 Va. L. Rev. 1589