Race and Gender as Explicit Sentencing Factors
13 Pages Posted: 12 Feb 2010
Date Written: February 11, 2010
This Symposium Article briefly traces the history of race and gender as explicit sentencing factors, identifies how the explicit treatment differed for race versus gender at sentencing, and explores how those differences persist in the modern discussion about sentencing policy. Historically, there were several differences between race and gender as sentencing factors, including the persistence of system-wide sentencing distinctions based on gender long after such distinctions based on race were prohibited. And while system-wide distinctions tended to disadvantage both racial minorities and women, distinctions made by individual judges when sentencing specific defendants resulted in longer sentences for racial minorities while women generally received shorter sentences than men convicted of similar offenses.
Although modern sentencing systems do not permit the explicit consideration of race or gender, they continue to play roles in debates over modern sentencing policy. Specifically, lawmakers are criticized for enacting policies that are thought to be based on racial stereotypes, and they are also criticized for failing to consider the differences between men and women when enacting other policies. Given the different roles that race and gender play in the modern sentencing policy discussion, it appears that legal commentators who study gender at sentencing may be working at cross purposes with those who study race at sentencing.
Keywords: sentencing, criminal justice, criminal law, race, gender, discrimination
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