Academic journal article The Journal of Gender, Race and Justice

Race and Gender as Explicit Sentencing Factors

Academic journal article The Journal of Gender, Race and Justice

Race and Gender as Explicit Sentencing Factors

Article excerpt

Most modern sentencing systems in the United States express an explicit commitment to ensuring that a defendant's sentence is not affected by the defendant's race or gender.1 This commitment to keeping criminal sentencing free of race and gender considerations is consistent with the wider legal trend of eradicating race and gender discrimination from modern life. But as in other areas, such as employment and housing, the commitment to equality in sentencing is of a relatively recent vintage. History reveals that some jurisdictions explicitly distinguished between criminal defendants at sentencing based on race or gender at some time in the past. And even in jurisdictions where legislation did not codify different treatment for defendants based on race or gender, individual judges sometimes adjusted the length of the sentence imposed on a defendant because of such factors.

Most distinctions based on race and gender are, of course, prohibited by the Equal Protection Clause.2 Modern sentencing systems not only omit race or gender as sentencing factors, but also treat race and gender as extralegal factors - inappropriate sentencing factors whose consideration by individual sentencing judges is forbidden. Still, there is concern that discrimination persists. Indeed, many of the modern social science studies of sentencing - including some studies in this journal volume - endeavor to answer whether race and gender continue to play a role (either consciously or subconsciously) in judges' sentencing decisions.

This Symposium Article briefly traces the history of race and gender as explicit sentencing factors, identifies how the explicit treatment differed for race versus gender at sentencing, and explores how those differences persist in the modern discussion about sentencing policy. History reveals some significant differences between race and gender as explicit sentencing factors. One difference is that explicit system-wide sentencing distinctions based on race have been prohibited since the mid-nineteenth century, while sentencing systems that provided different treatment based on gender persisted into the late twentieth century.

Race and gender distinctions made by individual judges when sentencing specific defendants also differed. Racial discrimination at sentencing resulted in longer sentences for racial minorities than for whites. This follows the general pattern of discrimination based on race and gender, which is now widely disfavored because it benefits a dominant group at the expense of historically disfavored groups. So, for example, whites have often received shorter sentences than racial minorities convicted for similar conduct. But gender discrimination at sentencing has not always followed this discrimination paradigm.3 Although system- wide discrimination resulted in longer sentences for women (the otherwise historically disadvantaged group), when gender played a role at individual sentencing, it often tended to advantage women, who received shorter sentences than men convicted of similar offenses.

Finally, when faced with the prospect of defending different treatment in the criminal justice system based on race and gender, government actors provided different types of justifications. Different treatment for blacks was historically justified based on the belief that blacks were, as a class, more dangerous. In contrast, different treatment for women was justified based on the belief that women, as a class, were less dangerous - i.e., that they were more amenable to rehabilitation, were led astray by a male co-defendant, or were less likely to recidivate.

These differences between race and gender as explicit sentencing factors are not just of historical significance. Although modern sentencing systems do not permit the explicit consideration of race or gender, both play significant and differing roles in debates over modern sentencing policy. While society criticizes lawmakers for enacting policies that are thought to be based on racial stereotypes - such as the federal law that imposes mandatory minimum sentences for crack-related crimes that are just as high as crimes involving 100 times the amount of powder cocaine4 - they are also criticized for failing to consider the differences between men and women when enacting other policies - such as the Federal Sentencing Guideline that states family circumstances are not ordinarily relevant sentencing considerations. …

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