What's Wrong With Sentencing Equality?

76 Pages Posted: 11 Aug 2016 Last revised: 6 Oct 2016

See all articles by Richard A. Bierschbach

Richard A. Bierschbach

Wayne State University Law School

Stephanos Bibas

University of Pennsylvania Law School

Date Written: 2016


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.

Keywords: Sentencing, punishment, equality, checks and balances, localism, criminal law, criminal procedure, restorative justice, Realignment, sentencing guidelines

Suggested Citation

Bierschbach, Richard A. and Bibas, Stephanos, What's Wrong With Sentencing Equality? (2016). Virginia Law Review, Vol. 102, P. 1447, 2016, Cardozo Legal Studies Research Paper No. 492, U of Penn Law School, Public Law Research Paper No. 16-25, Available at SSRN: https://ssrn.com/abstract=2821239

Richard A. Bierschbach (Contact Author)

Wayne State University Law School ( email )

471 Palmer
Detroit, MI 48202
United States

Stephanos Bibas

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/sbibas/

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