This article is written by Rohit Raj, a student of Lloyd law college, Greater Noida.
Table of Contents
Sentencing Disparity is a form of unequal treatment in providing Criminal Punishment which is totally unfair and disadvantageous in consequences. It simply means doing unfair and unequal treatment with all the criminals and the punishment is given not according to their crime. It is given just by doing sentencing disparity which is totally illegal as law says– All are equal before the law, no one is above the law.
Disparity is a difference in treatment or outcome that does not result from intentional bias or prejudice. Applied to the sentencing process, disparities exist when similar offenders get different punishments and different offenders get the same punishment. It shows in both the condition and it prevails in our society and as this type of practice is going in our system and we are proud of this type of social evil practice.
In the case of the criminal justice system, it allows policemen, prosecutors, judges and parole leads to a greater amount of discretion on their parts in providing justice and this liberty to them in the criminal justice system leads to the disparity in the Criminal punishment or sentencing. A 2001 University of Georgia study found substantial disparity in criminal sentencing men and women. The study found that in US federal courts, blacks and males are less likely to get no prison term.
Also in 2012 Sonja B. Starr from University of Michigan Law School found that men receive 63% longer sentences on average than women do and it is also based on data from US federal court cases. It is also proved at the global level that sentencing disparity is widespread.
Different aspects of Criminal Justice System
If we look at what the literature thinks about the disparity of sentence policy, it is quite interesting according to the literature. The studies that have been conducted during the past twenty years are particularly noteworthy for two, interconnected reasons. First, these studies are more methodologically sophisticated than the study of the criminal justice system that preceded them. Second, contemporary studies reject the assumption of the sentencing process universally affected by the racial biases and that the black and Latino defendant will always be disadvantaged as compared to white. The recent literature review after a deep study and research that the effect of race on sentencing differentiating between Capital and Non-Capital Punishment cases.
A studies found that death-penalty cases have generally:
- In the vast majority of cases, if the murder victim is white, the defendant is more likely to receive a death sentence.
- In a few jurisdictions, notably the federal system. Minority defendants are more likely to get the death sentence.
Reducing Racial Disparity in the criminal justice system is critical in order to produce fairness in justice and to uphold the ideals upon which the system is premised. Decades of research have demonstrated that race has always played a role in sentencing outcomes which leads to the origin or rise of the disparity of sentencing policy in the criminal justice system.
Problem in Effective Dealing with Disparity in Criminal Justice System
The problem of this study is the rise of the Disparity of Sentencing policy in the criminal Justice system although there is inclusion of Article 14 which states that Right to Equality and also mentioned in the constitution that No one is above the law. As this is considered as the main root of the problem but also like– Individuals killed by the Police is the rising problems which comes in front of us in some previous year and also killing of people by the police are not the high status people, all are the minority and backward people who are not much more aware about their rights and who have no social position.
National Surveys conducted by the U.S. Department of Justice found that while African American may be subject to traffic stops by police at similar rates to whites, they are three times as likely to be searched after being stopped.
This qualitative study will examine the level and intensity of the disparity in sentencing policy in the criminal justice system at a global level.
If we look for the Hypothesis of this given topic, firstly a question arises that why this disparity emerges in the sentencing policy in the Criminal Justice System? The incidence of disparity in sentencing policy between black and white people is at a larger extent. For example- ACLU found that blacks were 3.7 times more likely to be arrested for marijuana possession than whites in 2010, even though their rate of marijuana usage was comparable. There are many organizations that advocate to reform and reduce the disparity in the criminal justice system such as:
- ACLU Penal Reform International
- Sentencing Project
- Brennan Centre for Justice
- Cut 50
- Innocence Project
Factors Contributing to Emergence of Disparity in Sentencing Policy
Many factors which contribute to the emergence of the disparity in sentencing policy in the Criminal Justice System. Some of the factors were mentioned below to support or to explain one of the objective of this research:
- States with the larger Black populations is a significant driver of this harsh practice of disparity in the sentencing policy.
- Practice of Death penalty, treatment of Juveniles, and prison condition all these practices has resulted in large racial disparities in the jails and prison. If we take into consideration about the treatment of Juveniles then according to me it is totally to treat those minor who has done severe crime like- rape, murder. As, if they know the consequences of the act and also know it is an immoral act then they have no right to be treated in the Juvenile Act.
- States that spend more on welfare may choose to direct fewer resources towards maintaining criminal justice, they are less focused on whether the justice delivered in the criminal system is following the principle of equality or not.
Data Analysis at the Global Level
The Global scenario of the Disparity in sentencing policy in the Criminal Justice System is now changing the mindset of the people and it is slowly becoming a threat for the whole nation around the world. Practice of juvenile system, practice of death penalty and also the law favouring a Particular communities creating disparity in sentencing policy which brings cruelty in the minds of the accused towards the society and the government which is in itself a wide-reaching threat.
With the evolution and emergence of the Sentencing Disparity, sentencing disparity also emerges into various branches or we can say it in various forms like- Inter jurisdictional, Intra jurisdictional and Intra judge. Now taking into consideration the first form, In this judges in different jurisdictions sentence similarly situated offenders differently. Moving to the further forms, In the second one, judges in the same jurisdiction sentence similarly situated offenders differently and in the third one, an individual judge makes inconsistent sentencing decisions. And all these forms create a lot of chaos in the criminal justice system and finally leads to the disparity in the sentencing policy.
The source of such disparities is deeper and more systematic than explicit racial discrimination. The U.S. operates two different criminal justice systems: one for wealthy people and one for the poor people and the people of color. The rhetoric of the criminal justice system sends the message that our society protects everyone’s constitutional rights, but in practice the rules assures that law enforcement prerogatives will generally prevail over rights of the minorities and the poor.
Quantitative Data Analysis
In order to do analysis of the above research and the objectives and the linked problem, Quantitative method of analysis is being used for better analysis of this emerging problem i.e. Disparity of sentencing policy in the criminal justice system.
- In the latest year, the largest fall in the volume of prosecutions and convictions for indictable offences was seen in the Asian group, down by 22% and 20% respectively. Prosecution and convictions fell by 18% and 16% for black defendants and 13% each for white defendants.
- Asian and Chinese or other offenders had the highest custody rate for in 2018 at 37% each, compared to 33% for white offenders.
- The Proportion of stop and searches conducted on White suspects decreased from 75% in 2014 to 59% in 2018-19 and increased for all the minority ethnic groups.
These all three Quantitative Data analyses clearly show the disparity between the different communities of offenders and prosecuted people in sentencing policy in the criminal justice system.
Discussion of aspects with Critical comments
As above discussed the sentencing disparity that is a form of unequal treatment in criminal punishment that is often of unexplained cause, unfair and disadvantageous in consequence. In this Doctrinal research, Disparity is shown by linking with the race and ethnic in the criminal justice system and shows racial biases with the help of example at a global level. Racial biases mostly spread and the country which is affected by this biasness is the United States and this analysis on the part of the author is a good attempt. In the Doctrinal research, also inculcate different forms of the disparity on the level of the judgment given by the Judges i.e. Inter Jurisdictional, Intra Jurisdictional and Intra Judge.
Afterward, a major discussion is being placed in front of all that as all are talking about the Disparity in sentencing policy in the criminal justice system but what are the reasons behind its emergence at a global level. Reason which were cited for the emergence of this problem at a global level is due to some practices like- Juveniles Act, Death Sentence and the U.S. Sentencing policy which has two aspects i.e. one criminal system for the richer section and one for the minorities and the poor people. Government is not spending a lot of its amount on reforms in the criminal justice system and neither on the proper implementation of laws which regulate the criminal justice system and due to which it lacks behind in creating an equitable sentencing policy in the criminal justice system.
In the data analysis, a quantitative method is being used to show the disparity on the basis of race, ethnic by using the quantitative data at global level. A very important point which is mentioned above and it is true and it’s a practicality i.e. the rhetoric of the criminal justice system sends the message that our society protects everyone’s constitutional rights, but in practice the rules assures that law enforcement prerogatives will generally prevail over rights of the minorities and the poor.
With the increasing disparity in the sentencing policy in the Criminal Justice system the mindset of the offenders and the persecuted peoples deteriorate and it leaves a deep scar on the society and it is not the problem of any one country but it is the global level problem. And if national and international governments and agencies will not do a deep research on it and involve in reforming the existing policy, then nothing will be changed even after passes of a long time. Practices which are vague but still continuing is also a major reason for this issue which continuously creates hurdles in the sentencing policy in the criminal Justice system.
Some of the recommendations as a researcher I want to suggest are:
- National and International governments and agencies should spend more money on researching and involve more in the reformation in the existing vague policies.
- Government should as soon as possible ban and stop the practices of some of the wrong practices like- Juveniles Act, Death Penalty.
- The U.S. should stop its two sided sentencing policy i.e. one for wealthy people and one for the poor people and the people of color.
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