Elizabeth Finn

Justice: Theories and Applications

Prof. Haglund

April 22, 2016

Sentencing disparity is the contrast between two or more court cases

that have something in common but have been resolved differently. Without
disparity it can make court cases very difficult to find an equal solution, for

example: a woman being convicted for murdering her husband after he was

begging to die because he is very ill is getting sentenced to life without

parole versus a defendant getting sentenced to twenty-five years with

chance of parole for murdering her husband for the insurance money.

Disparity is hard to follow for every specific case and that is why the court

system baselines and guidelines to follow when sentencing offenders. In my

opinion, sentencing disparity is the fair way to go but I understand there is

some bias that comes with it.

In one court case, Batson v Kentucky, Batson was an African American

man being charged for burglary in Kentucky. During his trial, the jury was

entirely white. Having an all-white jury on an offending African American man

seems a bit biased that is why Batsons lawyer fought and won a peremptory

challenge a right in the jury selection for the attorneys to reject a certain

number of potential jurors without stating a reason. Many jurors were

removed and in the end replaced with different white jurors because the

other prosecutor dismissed six jurors including all four of the six that

happened to be African American jurors. Batson was found guilty in the

Kentucky court room and later appealed his case in the Supreme Court. In a

7-2 decision, the Supreme Court ruled in Batsons favor. Court cases later,

Batsons challenge helped open the eyes of many defendants about having a

cross cultural jury. It led to many controversial cases with men and women
and having a majority female jury while convicting a male offender and vice

versa.

Some people prefer that the same punishment is to be given to those

who commit the same crime. But, is that really justice? All murderers go to

prison for life, all rapists, go to prison for twenty-five years, all robbers go to

prison for twenty years, and so on. Sounds fair, does it not? Well, think about

it this way, a man is dying of colon cancer and begs his wife to help him free

himself and put him out of his misery so she kills him. Does she deserve a

life sentence with no parole as opposed to a man who murdered his wife and

two children to get the insurance money and openly has no remorse about

it? This is where sentencing disparity would come in, a judge would hopefully

consider resolving these cases differently. People like to argue that is being

biased or not equal but really having the same punishment for the same

crime is not exactly equal to a certain extent. Although, some court cases

tend to believe there is what they like to call a hidden bias. The judge follows

the rules stated in The American Bar Associations Code of Judicial Conduct

that are relevant to bias. (DOJ 248) Judges and evaluators truly struggle to

overcome their prejudices while analyzing cases. That is why this hidden bias

can result in a recusal, or a decision makers removal of him or herself from a

case. Since not many people would know if the judge went to high school

with a defendant, or his father dated a defendants mother when they were

in middle school, this bias is considered hidden. Or even if the offender is a

three time offender and gets the same judge his or her punishment the third
time may be much worse versus a defendant who is a first time offender for

the same crime and receives a lesser punishment. That is why sentencing

disparity is needed in all fifty states of America.

Another case that arose questions and complaints was the 2012 case

of Dorsey v United States. Edward Dorsey had been convicted of possessing

crack. In 2010, Congress passed the Fair Sentencing Act, altering the

crack/powder ration 100:1, which it had been since Congresss adoption to

the Anti-Drug Abuse Act of 1986. But, ultimately, the Supreme Court came to

the conclusion that defendants like Dorsey who were charged with

possession prior to August 3rd, 2010, but not prosecuted until after the date

of the new legislation were not subject to their prior punishment. Dorsey was

charged with possession before the new legislation came out which meant

he had to follow the mandatory minimum sentences law, a minimum of ten

years for his crime. Under the new law he would not be subject to a

minimum of ten years due to his amount he possessed. But since he was not

prosecuted until after the new legislation and committed the crime during

the old one, they had to follow from the laws from when the crime was

charged not when he was prosecuted and he ended up serving his full, ten

year term.

Although I do not agree with how the courts may have handled some of

the cases I have potential solutions to suggest. Also, not to forget that all of

these defendants did commit serious crimes they still deserve a fair trial. In

the Batson v Kentucky case, Batson eventually won in his favor but a fair
way to make sure there is not an impartial jury is to have an equal number of

races and genders. That way the jurors will consist of half men, half women,

as well as a person from all different races. That is one solution to avoid an

impartial jury. The next hypothetical case discussed, sentencing disparity is

the best solution for that. The same punishment for the same crime is not

equal necessarily because it was the same crime committed but it was the

reasoning behind it and the motive that need to be considered most that

should change the outcome of the punishment. But, at the same time, the

hidden bias from court judges and evaluators make it difficult to find a

solution to please everyone when every person has their own thoughts and

beliefs. To resolve that, judges should not be allowed to be a repeat judge for

repeat offenders and should be questioned before taking a case just like the

jury does. That would help avoid bias because technically a judge is part of

the jury to in a way. Lastly, a solution for the Dorsey case would be that all

cases that took place or were prosecuted after the new legislation should get

a retrial based on the new laws and anyone that was prosecuted before the

new legislation should serve their term because they never had the new laws

in action while they were already serving their term.

As stated before, sentencing disparity is the rational way to go when in

the court room. Convicting a person for helping put a loved one out of misery

when they are begging for it and convicting a person for killing a loved one

for their money, are both murder but not the same crime. Condemning
disparity has its pros, cons, and biases but it helps find a reasonable solution

for many complicated cases such as any of the examples stated previously.