Sentencing Equality Pathology

17 Pages Posted: 6 Dec 2004  

Marc L. Miller

University of Arizona College of Law


This short article critiques the highly constrained notions of equality in modern sentencing reform. Indeterminate sentencing embraced formal outcome inequality: Different sentences for similar offenses were needed to serve the varied circumstances and characteristics of each offender. The past is a foreign country, and it is hard now to even imagine the mindset that allowed such formal outcome inequality to exist. While Congress made the reduction of unwarranted sentencing disparity a primary goal of the Sentencing Reform Act of 1984, the past two decades have not produced nuanced conceptions of disparity and equality in the federal system. The language of formal equality has continued to dominate the federal discussion of sentencing. The focus on apparent outcome equality in sentencing has become a pathology of federal sentencing reform for the past twenty years. The narrow focus of judges and the United States Sentencing Commission on achieving sentences that appear similar for offenders who appear similar - in other words, the absence of any context beyond formal outcome equality - has allowed Congress to shape federal sentences into a ready political tool.

The addition of detailed sentencing rules, procedures, and appellate review - basic elements of due process - might seem to offer a counterweight to the risk of sentences becoming unanchored from deeper conceptions of theory and justice. But detailed procedure, like formal equality, does not guarantee wiser outcomes in the absence of context. As Grant Gilmore once noted, in Hell there will be nothing but law, and due process will be meticulously observed. Gilmore might have added there will be infinite formal equality as well.

Building on work by Professor Martha Fineman on the contextual nature of equality in other areas, this article suggests that fuller conceptions of equality in sentencing must reject narrow time-framing, account for the multiple screening and sorting functions of the criminal process (including sorting within and among criminal justice systems), attend to the justifications for punishment and evidence in support or against those justifications, and consider sentencing within the broader context of the causes and solutions to the social problem of crime. Functionally these goals can be advanced through continuing efforts at defining ideas and through comparative study of different places (including state and non-U.S. systems) and different times.

Suggested Citation

Miller, Marc L., Sentencing Equality Pathology. Emory Law Journal, Vol. 54, 2004. Available at SSRN:

Marc Louis Miller (Contact Author)

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-621-1498 (Phone)

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