The core purpose of a criminal sentence is to hold a wrongdoer accountable for their unlawful actions. Underlying purposes of sentencing can be deterrence and rehabilitation.
Criminal sentencing is most often determined by legislatively mandated ranges for particular offenses, or sentences base on sentencing guidelines—judicial guideposts designed to make the punishment fit both the crime and the offender. More often than not, sentencing guidelines designed to produce equal treatment fail because judges are individuals who bring a host of personal biases to the bench that inevitably results in disparate, disproportionate, and unfair sentences.
These judicial biases inflict a deeply rooted incoherence in the nation’s criminal sentencing process.
Black and Brown Defendants Given Harsher, Longer Sentences
For example, in a 2014 opinion piece for the New York Times, John Jay College professor of psychology, Preeti Chauhan, underscored this rooted incoherence with this observation: “ … research has consistently shown that black and Hispanic defendants are given longer and harsher sentences relative to their white counterparts. Many blacks and Hispanics live in poor neighborhoods and face under-funded schools and few opportunities for success. The judge may see these circumstances as risk factors for antisocial behavior and issue a more punitive sentence. Thus, the notion of individualized justice can fuel racial and ethnic disparities.”
A significant amount of the incoherence in criminal sentencing lies at the doorstep of the U.S. Supreme Court—nine justices who are too often guided by their own social and political ideologies when interpreting the U.S. Constitution across an increasingly diverse legal landscape in a modern society.
To underline this point, we need only look at some of the Eighth Amendment of the U.S. Constitution (prohibition of cruel and unusual punishment) sentencing cases decided by the court during a four decade-plus period:
- Woodson v. North Carolina (1976): A state may not automatically impose the death sentence on any offender, including murderers, because the penalty of death is “qualitatively different from a sentence of imprisonment.”
- Coker v. Georgia (1977): A death sentence for the crime of rape violates the Eighth Amendment.
- Eddings v. Oklahoma (1982): Before a state can impose a death sentence, the sentencer must consider the “character and record of the individual offender and the circumstances of the particular offense” to determine if factors mitigate against the death sentence.
- Edmund v. Florida (1982): Eighth Amendment prohibits the execution of a participant in a robbery/murder who did not kill anyone, did not attempt to kill anyone and did not intend to kill anyone.
- Stanford v. Kentucky (1989): The execution of juvenile offenders did not violate the Eighth Amendment.
- Harmelin v. Michigan (1991): A mandatory life without parole sentence on an adult offender does not violate the Eighth Amendment even when there is no individualized assessment of whether the sentence is appropriate.
- Atkins v. Virginia (2002): The Eighth Amendment prohibits the execution of “intellectually disabled” offenders.
- Roper v. Simmons (2005): The Eighth Amendment prohibits the execution of juvenile offenders.
- Kennedy v. Louisiana (2008): The Eighth Amendment prohibits the execution for the conviction of the rape of a child.
- Graham v. Florida (2010): Eighth Amendment prohibits a life without parole sentence for juveniles convicted of non-homicide offenses.
- Miller v. Alabama (2012): It violates the Eighth Amendment to the U.S. Constitution for a state to have a law that mandates a juvenile offender (even one convicted of murder) be sentenced to life without parole without giving the offender a chance to show the jury or judge that they should not have to spend the rest of their life in prison.
The cases represent a social evolution much more than a legal evolution about the way punishment should be imposed in American courts. It is doubtful that a 1935 Supreme Court, much less an 1865 Supreme Court, would have reached the same constitutional conclusions drawn in these 11 landmark cases by the court.
Systemic Racism Infects Every Stage of Criminal Justice System
Despite the social promises of racial equality (against a history of slavery, Jim Crow, and segregation), constitutional due process and equal protection under the law, and impartiality in the administration of justice, volumes of research, supported by irrefutable data, reveal that systemic racism against Black people (and other people of color) infects every single stage of the American criminal justice system, including but not limited to:
- Policing and profiling
- Misdemeanors, petty crimes, and driver’s license suspension
- The war on drugs
- Jury selection and jury service
- The death penalty
- Prosecutors, discretion, and plea bargaining
- Judges and sentencing
- School suspensions and the school-to-prison pipeline
- Prison, incarceration, and solitary confinement
- Bail, pretrial detention, commutations and pardons, gangs, and other issues
Systemic racism does not, and will never, produce individual accountability, much less any semblance of justice. That is why sentencing in American courts is both fundamentally and structurally incoherent. Justice, when it prevails, is often more accidental than intentional.
A 2016 report by the Brennan Center for Justice found that 39 percent of the American prison population (roughly 2 million people) could be safely returned to society.
And a November 2021 report by the Pew Research Center reveals why there are so many people in prison who should not be there with this stark conclusion:
“Americans are closely divided over whether people convicted of crimes spend too much, too little or about the right amount of time in prison, with especially notable differences in views by [political] party affiliation, ideology, race, and ethnicity.”
The bottom line: criminal sentencing coherence will never be realized in a criminal justice system so influenced and shaped by such diverse political views, social ideology, race, and ethnicity.
That is the tragic nature of criminal sentencing in America today.