Sentencing disparity is defined as "a form of unequal treatment that is of often of unexplained cause and is at least incongruous, unfair and disadvantaging in consequence". It is important to distinguish disparity from differences that arise due to legitimate use of discretion in the application of the law and those difference that arise due to discrimination or other, unexplained, causes unrelated to the issues found in the specific criminal case.
This is a major problem because two judges could be faced with a similar case and one could give an extremely unfair and unnecessary verdict, whereas another would give a much lesser sentence. A 2006 study by Crow and Bales gives evidence of sentencing disparity. The Florida Department of Corrections gave statistics of those prisoners who received probation or community control in the period 1990–1999. Prisoners were categorized as Blacks and Hispanics or Whites/Non-Hispanics. The study found that the Blacks and Hispanics received more intense and harsher penalties than the White/Non-Hispanic group.
A 2001 University of Georgia study found substantial disparity in criminal sentencing men and women received "after controlling for extensive criminological, demographic, and socioeconomic variables". The study found that "blacks and males are... less likely to get no prison term when that option is available; less likely to receive downward departures [from the guidelines]; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites and females".
A 2012 study by Professor Sonja Starr of the University of Michigan Law School found that the sentencing gender disparity in federal cases in the United States was approximately six times greater than the racial disparity for comparable offences. Professor Staff also found that women were twice as likely to avoid incarceration if they were convicted and that "more disparity is introduced at each phase of the justice process."
- Estimating Gender Disparities in Federal Criminal Cases
- Article from the University of Michigan on gender sentencing disparity
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- Alfred Blumstein, et al. Research on Sentencing: The Search for Reform, Volume II (1983)
- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144002 Estimating Gender Disparities in Federal Criminal Cases