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December 8, 2004

Deep thoughts about shallow conceptions of equality

Sentencing guru Professor Marc Miller (who is also one of my casebook co-authors and a great friend) has posted on SSRN a draft of his latest sentencing article, entitled "Sentencing Equality Pathology."  The first line of Marc's abstract spotlights both the article's theme and its great importance: "This short article critiques the highly constrained notions of equality in modern sentencing reform."

The article terrifically details (in under 20 pages!) how stunted and underdeveloped — and yet dominant — the concepts of "equality" and "disparity" have been in the federal sentencing reform dialogue, and this makes the article a must-read for everyone contemplating the post-Blakely sentencing landscape.  Though Marc's article is focused on pre-Blakely developments and perspectives, I view the Blakely decision in part as a (long-overdue) statement by the Supreme Court that some other values — such as the jury trial right and a commitment to adversarial justice — need to be balanced with, or perhaps integrated into, our modern quest to achieve sentencing equality.

Here are more highlights from the article's abstract:

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....

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.

December 8, 2004 at 07:01 AM | Permalink


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