May 18, 2008
Troublesome disparity in state sentence for same crimes
This local story from Indiana, headlined "Parents cry foul about sentences: White co-defendant gets no prison time, biracial one gets 8 years," reports on a worrisome example of sentencing disparity. Here are the basics:
A wide gap in the punishments of two 19-year-olds who pleaded guilty to the same crime under similar circumstances has, in the minds of some residents, brought the specter of racial discrimination into a St. Joseph County courtroom.
David Opfer and Justin Brooks both pleaded guilty to one count of arson in connection with a fire at Park Jefferson Apartments in April 2007 that caused minimal damage but endangered the lives of residents there. Neither of them had a criminal background. On Wednesday, a judge placed Opfer, who is white, on probation, while a different judge had sentenced Brooks, who is biracial, to serve eight years in prison.
"I can come to no other conclusion," Brooks' father, John Brooks, told The Tribune by phone Friday from Maryland. "I don't like to play the race card, don't get me wrong," said John Brooks, who is black and retired from the U.S. Army. "But how can one get such a drastic difference in sentencings?"...
Indiana law gives judges flexibility in sentencing, and the plea agreement Opfer and Brooks signed with prosecutors gave the judges ample discretion in sentencing.
May 18, 2008 at 08:34 PM | Permalink
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Taking the story at face value, this is another argument for mandatory guidelines with effective appellate enforcement. A discretion-based system makes an outcome like this more likely than a rules-based system. Sentencing "flexibility" sounds all well and good until the results on the ground start to show up.
Posted by: Bill Otis | May 18, 2008 9:51:30 PM
Is there any evidence that the "hanging" judge metes out sentences unfairly? If not, it's pretty unfair to start screaming racial bias. The parents obviously are upset, given the disparity in sentences, but a solution appears to be the revision in the case management system (mentioned in the news article) requiring that co-defendants appear before the same judge.
Prof. Berman, this is another example of what looks like "optics". I would think that a law professor would be less caught up in breathless headlines and more interested in the actual facts and would refrain from nasty insinuations about racial bias without any proof.
Posted by: federalist | May 18, 2008 10:29:33 PM
The story is not an argument for mandatory guidelines - that's an extreme reaction. It's an argument for less discretion in sentencing. Mandatory versus less discretion - two completely different concepts. Sentences must be anchored to something - say, an advisory guidelines system. Such an outcome could not happen in the federal advisory system. It clearly is an unwarranted sentence disparity.
And, the Prof's headline was "Troublesome disparity in state sentence for same crimes." That's hardly "breathless" or a "nasty insinuation."
Posted by: John | May 18, 2008 10:54:12 PM
John, come on, the professor is clearly making a racial issue over this. It's disingenuous to suggest otherwise. I don't expect the kid's father to know better; I do expect a law professor to know better.
Posted by: federalist | May 18, 2008 11:54:20 PM
I would think that a law professor would be less caught up in breathless headlines and more interested in the actual facts and would refrain from nasty insinuations about racial bias without any proof. You would think that, wouldn't you?
Posted by: | May 19, 2008 12:58:05 AM
You people are missing the point here. I'm not sure if judges are appointed or elected in Indiana, but we must make sure that we have competent judges. How can u sentence some one to 8 years when no one was hurt. I think that a sentence of probation would have been appropriate for both of them, regardless of race. Clearly one judge saw it, and the other one didn't.
A mandatory guideline system will only politize the judicial system even more. We must make sure that the Judges are competent, so they can use their discretion wisely. Taking away the Judge's discretion is the option. We don't need to give more power to the prosecutors, as it happened at the federal level.
Posted by: EJ | May 19, 2008 2:23:01 AM
As usual, some here prefer not to confront the issue of excessive sentencing in general or the institutionalized bias, be it on racial, religious, economic or other grounds, that bedevils the justice system today. There is an urgent need for a new reforming sentencing commission to be set up - charged with transforming the debilitating and unfair culture of penal incarceration that exists today into the just, reasoned and effective correctional system that should be the aim of the world's self-proclaimed democratic model of a free society. Or has the concept of a free and fair society been quietly swept away by the political classes in favor of China's political system which is all-knowing and all-powerful. In many respects we seem to be more like China every day.
Posted by: peter | May 19, 2008 2:34:36 AM
Stories like these are very disturbing, but very difficult to really determine prejudice. Anytime you look at just one case you can find disparities in treatment. There might have been a reason for the difference. Or, maybe the one judge typically gives harsher sentences.
Posted by: Pelikan Fountain Pens | May 19, 2008 7:49:42 AM
"The story is not an argument for mandatory guidelines - that's an extreme reaction."
Not really. Far from being "extreme," a mandatory system was the carefully chosen option of large bi-partisan majorities in Congress when it adopted the Sentencing Reform Act of 1984. Congress put mandatory guidelines in the system precisely to try to avoid, to the extent possilbe, seemingly irrational disparity of the kind that, so far as the news article suggests, seems to have happened in this case. And mandatory guidelines were, not merely Congress's choice; they were a good idea, as explained by Justice Stevens in his compelling dissent from the remedial part of the Booker holding.
"It's an argument for less discretion in sentencing. Mandatory versus less discretion - two completely different concepts."
They're different, alright, because in general they are inversely related. The way to get less discretion in sentencing in to rein in the judge with a rules-oriented regime. Such a regime does not eliminate all discretion, nor should it, but it acts as a check in a way an advisory sysstem does not.
"Sentences must be anchored to something - say, an advisory guidelines system. Such an outcome could not happen in the federal advisory system."
It couldn't? How do you know that? In fact, in light of the gigantic green light given to district courts in Gall and Kimbrough, a result like this is waiting to happen in the federal system, if it has not already happened, which I strongly suspect it has.
Posted by: Bill Otis | May 19, 2008 8:02:03 AM
Federalist, while there may be a perfectly innocent, non-racial explaination for the disparity, the sentencing result in this case is highly troubling and suspicious no matter what - it should trouble anyone who is interested in justice (as opposed to law which allows such disperate sentences) that two defendants with similar records can be given such drastically different sentences for the same crime.
Does that mean that the result was due to racism? No. Does it rule out racism as the cause of the result? No. Would the same result be troubling without the racial aspects of the case? Yes. Does the potential that there were racial aspects in the case make it even more troubling? Yes.
Posted by: Zack | May 20, 2008 9:39:38 AM
Zack, the casual attribution of racism is corrosive and wrong. The outcome IS troubling, but it would be just as troubling if positions were reversed. In any event, this attitude of suspicion is curious, to say the least.
Posted by: federalist | May 20, 2008 3:21:54 PM
Well, of course, if the sentences were reversed it would be equally troubling for the exact same reason - one could reasonably question whether White defendants are treated fairly in that court.
Posted by: Zack | May 20, 2008 5:34:51 PM