Sentencing Disparity: Arbitrariness of Prosecutorial Judgment - Term Paper Example

Sentencing disparity: Arbitrariness of prosecutorial judgment Introduction Sentencing disparity has been a continuing issue for the justice system. The offender’s verdict greatly depends on the prosecutorial discretion. Historically, it has become not unusual for defendants of similar crime to receive different verdict. Evidently, prosecutors have broad discretion. As a consequence, one prosecutor may consistently pursue the offender’s maximum sentence. On the other side of the scale, another prosecutor may consistently settle through plea agreement. This paper discusses the three factors influencing the prosecutor’s judgment. Moreover, this paper identifies the most important factor of prosecutorial discretion. It will also answer the question on whether or not sentencing disparity is fair or equitable. Finally, this paper will compare and contrast this disparity from the ethical point of view. Sentencing disparity People have an intuitive idea of the meaning of sentencing disparity. Paradoxically, the concept of unwarranted disparity becomes bleak upon deeper reflection. Two offenders, for instance, with the same crime of breaking and entering, are sentenced with one year and five years, respectively. Roberts (1999) posed an enduring question: Which sentence is disparate? They seem to emphasize the sentence or conviction that is categorically considered as disparate. Undoubtedly, there exists an unwarranted disparity in the case between the two above-mentioned offenders. In a survey conducted, 60 percent of over four-hundred respondents admitted that there is a degree of sentence variation among judges (Roberts, 1999). By and large, sentencing disparity occurs two or more offenders, having different committed crimes, are convicted with the same level and nature of punishment (Clear, Cole, & Reisig, 2009). And sentencing disparity is more obvious in the prosecutors’ judgment. Sentencing disparity is normative rather than empirical (Alschuler, 2005). Its archetype is the sentencing by lottery. In the lottery system, different numbers are treated as the same number by virtue of chance or probability. Similar to lottery, offenders with different crimes committed are equally treated like the same criminal by virtue of sentencing disparity. Equality, of course, means the consistent application of principles to different cases (Alschuler, 2005). Apparently, sentence disparity deviates from consistency or equality. Factors of prosecutorial discretion There are three chief divisions of factors influencing prosecutorial discretion: (1) legal issue, (2) extralegal issue, and (3) resources issue (Siegel, 2008). First, legal issue refers to the nature of the justice system, crime, and parties involved. The amount and strength of the evidences gathered are crucial elements for a prosecutor to bring the case forward to trial. Furthermore, offenders who are likely candidate for prosecution are those who are notorious for drug dependency, a history of criminal acts, and causing physical injuries to victims (Siegel, 2008). Interestingly enough, there are three main precursors for a prosecution to succeed: (1) the weight of the evidences; (2) the offender’s background; and (3) the degree of injury. For the drug-related cases, for example, prosecution is determined by the amount and type of the drug involved (Siegel, 2008). The grain and availability of evidences measure the degree or intensity of the offender’s punishment. Evidences have the power to acquit or condemn the defendant. The criminal record of the offender also forms the basis of the prosecutor’s judgment. The criminal’s history intuitively proves that the crime in question is his or her own doing. And the seriousness of the crime surely influences prosecutorial discretion. In fact, the prosecutor uses his or her discretion only for those minor incidents. However, offenders are more likely charged if the victim was seriously injured. Indeed, the punishment is harsh if the crime is serious (Gaines & Miller, 2009). Conversely, the sentence is mild if the case is not that serious. Second, extralegal issue points to the defendant’s racial or ethnic background (Siegel, 2008). At certain rate, the race of the offender or victim significantly affects the prosecutorial discretion. Here’s a case of a racially motivated type (Poulin, 1997): A white prosecutor received a number of election-related allegations. Since the prosecutor’s office has limited fund, he opted to focus the investigation solely to black politicians. Eventually, the prosecutor finds evidence linking the election campaign of African-American Congresswoman Joan Smith to election fraud. The prosecutor charged her and fiercely pursues prosecution. It appears that prosecutor brings his biases inside the courtroom. Also, it shows that racism is widespread in the modern time. For racism in particular, it is evident that the prosecutorial judgment is molded by a “set of self-perpetuating racial assumptions” (Henderson, 2000). The prosecutors’ credibility is sharply challenged; they seem to fail to follow their prescribed duties. Clearly, the law fails to specifically stipulate on how to select and treat criminal defendants. However, extralegal issue has downside. Some have questioned the validity of the argument presented in the extralegal issue. In fact, the effect of the defender’s race on prosecutorial discretion is indirect (Thomson & Zingraff, 1981). Also, most studies failed to consider the “potential interactions” that might occur among other factors (Franklin, 2010). It is argued that such studies merely emphasized the offender’s skin color while disregarding altogether other important factors: the characteristic of the crime and the relevance of the evidences. And third, resources issue involves the availability of the detention cell, the size of the workloads, and the number of available prosecutors (Siegel, 2008). The courts in America are “chronically congested” (Bibas, 2010). Numerous offenders seem to share a narrow space from their detention cell. The rate of inmates that comes is greater than the rate that goes. In addition, the gap between the numbers of prosecutor and court case is quite lengthy. A number of prosecutors have numerous caseloads simultaneously. Prosecutors are forced to resort to use discretion. Furthermore, prosecutors decline to bring the case to trial if such case is costly enough. For example, some drug cases require extensive forensic investigation and expert witnesses in the preparation for and on-going prosecution trial. Evidently, the prosecutor is burdened to spend money in asking the services of the expert professionals. The pursuance of the prosecution practically relies on the allocated budget. It is said that the availability of resources is a critical factor in shaping prosecutorial discretion (Siegel, 2008). Most important factor Some have stated that the primary predictors for a prosecutor to bring the trial forward are the severity of the offense and the criminal’s history (Kramer & Ulmer, 1996). Others have argued that it’s the race or gender that affects departure decisions. To my mind, however, the most important factor that shapes prosecutorial discretion is the issue concerning resources. Fundamentally, prosecutors need resources -- expressible in money or any form of it -- to pursue and sustain legal proceedings. Assuming that the offender has a history of drug addiction, to bring the case forward is difficult particularly if the case requires an expert’s analysis and testimony. For one, the works and apparatuses utilized by forensic scientist are expensive. This is also true if the prosecutor’s office receives a small amount of budget allocation from the national government or state. Not to mention, there are numerous legal caseloads that prosecutors must tackle with. Moreover, race issue is relatively associated to resources issue. The case of the black Congresswoman is an example to this. The prosecutor’s office has limited resources, thus, the prosecutor decided to concentrate the racially-focus investigation to African-American politicians. On the other hand, things would have been different if the office has ample resources; theoretically, some white politicians may be caught cheating during their election campaign. Without question, the distribution and usage of illegal drugs are serious crimes. Excessive intake of prohibited drugs destroys not only the drug dependent in particular but also the society as a whole. At certain respect, the history of the drug dependent speaks about the personality of the offender. The frequency and regularity of the offender’s act testify about his or her capacity and ability to do it again in the immediate future. Psychologically speaking, habit or habitual acts define a person. It may also be true that race issue is far connected to resources issue. The former deals with the skin color while the latter deals with the green money. Racism is qualitative. Resources, on the other hand, are quantitative. Of course, these factors (i.e., legal and extralegal) play an important role for a prosecutor to forward the case to trial. And perhaps, prosecutors should handle well and spend wisely the available resources that their office has. Legal and extralegal issues undoubtedly mold the prosecutorial judgment. Nonetheless, they are just secondary concern. Resources issue remains to be the primary precursor in influencing prosecutorial discretion. Resources issue largely includes the availability of: (1) the prosecutors; (2) detention facilities; (3) caseloads; and (4) financial sustainability (Siegel, 2008). Without resources, the pursuance of a prosecution trial is hardly possible. Is it fair or equitable? The prosecutor’s main obligations are to enforce the criminal law and to seek justice (Siegel, 2008). A prosecutor who constantly seeks the highest level of the defendant’s verdict is an unfair one. It implies that he or she does not abide to the duties inherent in the prosecutorial profession. Such prosecutor pursues a standpoint merely for an aim of the offender’s maximum sentence. The nature and seriousness of the crime are utterly discarded. I fear that this may lead to prosecutorial misconduct. Prosecutorial misconduct is a growing issue confronting the legal system (Lucas, Graif, & Lovaglia, 2008). Others have already expressed concern that it may go unchecked (as cited in Lucas et al., 2008). To make matters worse, prosecutors are free from judicial review. It appears that the power of the prosecutor is an absolute one. It is worth noting on Sam Colman’s statement concerning the unchecked prosecutorial misconduct. He said that most innocent people are put to jail because of the overzealous prosecutor (as cited in Christianson, 2004). Christianson (2004) cited Erick Jackson’s arson case, saying that he was convicted to twenty-five years of life imprisonment. In a private investigation, however, it was found out that the original fire had been caused not by arson but rather by faulty electrical wiring. This clearly proves Jackson’s innocence. But the prosecutor “covered it up” and remained firm (Christianson, 2004). This sort of prosecutorial discretion is dangerous for it undermines the objectivity of the case. Prosecutors have the unrestricted power to choose and interpret the evidences presented to them. Like the overzealous prosecutor, I think that it’s unfair for a kind of prosecutor who always adhere and seek for the offender’s minimum sentence. Such prosecutor fails to examine closely the available evidences and the circumstances involved in the crime. Justice is not served. In fact, plea bargaining has drawback. Despite the lack of evidences and being truly innocent, for example, the accused is forced to avail for the plea bargain agreement merely for an unfounded fear (Yant, 1991). Plea bargaining makes an innocent defendant into a guilty suspect. Lenell Geter, a 24-year-old black engineer, was convicted of a crime he did not commit (Yant, 1991). A court-appointed attorney was replaced when Geter’s private attorney withdrew from his case. With little time and money, this lawyer devoted all his effort to persuade Geter in pleading guilty for lesser charge. Geter’s case is an apotheosized of the negotiated plea’s shortcoming. Plea agreement presupposes that the accused is a guilty suspect although he or she is innocent (Yant, 1991). Moreover, plea bargain lacks a sense of justice. Through plea agreement, an offender pleads guilty to simple assault even if he hit his victim’s face with a baseball bat (Gaines & Miller, 2009). While the offender received a mild sentence, on the other hand, the victim received a harsh “justice.” It could be argued that the same offender can hit again another victim, and consequently receives a simple sentence via plea agreement. On the other side of the scale, plea bargain possesses positive aspects: (1) the process of case hearing becomes more expeditious; and (2) the expenditure for prosecution reduces (Watson, 2010). First, there will be no long and exhausting trial in plea bargaining. After the plea agreement, the verdict is automatically given. And second, the prosecutors don’t have to spend more when they can spend less. The services of other expert witnesses are no longer much needed. Investigations are unnecessary. By and large, plea agreement benefits the prosecutor more than the defendant or victim. From the ethical point of view Is it equitable to have two prosecutors seeking different degree of the defendant’s verdict? There appears to be a sort of balance: one holds the maximum sentence while the other holds the minimum. This reminds us of justice symbolizing as the weighing scale. Two opposing views permit the exploration of the case in its entirety. Maximum and minimum sentences are fairly contested. Jackson’s verdict, for example, could have been lessened if one prosecutor holds the line for the defender’s minimum sentence. His twenty-five years of life imprisonment could have been much lesser. Jackson’s case though is far from simple. It is true that the fire came from many and different origins; still, one has to establish the fact that the fire originates from the faulty electrical wiring. Like Geter’s case, the prosecutor plays an important role in Jackson’s. Melanie McGuire, on the other hand, was convicted and sentenced to a maximum penalty of life imprisonment (Gaines & Miller, 2009). McGuire was convicted for the crime of murdering her husband: she drugged her husband, chopped up his body, and stuffed the remains into a suitcase. In reading its judgment, the court stated that the murder “simply shocks the conscience of the courtroom” (as cited in Gaines & Miller, 2009). The use of the word “shock” has implications. It is shocking because: (1) the murderer is a woman; (2) of the way of murdering the husband; and (3) it is inhumane. It also tells us about the emotion and thoughts of the prosecutors upon hearing the case. The emphasis shifts from the character of the crime towards the audience’s impression. To my mind, the crime itself committed by McGuire is extremely serious. Hypothetically though, things would have been different if a prosecutor adhered for McGuire’s minimum sentence. Instead of serving life imprisonment, McGuire could have served lesser than the maximum penalty. From the ethical point of view, lowering McGuire’s sentence would be right if the prosecutors consider other relevant circumstances: for instance, the psychological and historical reasons why McGuire did what she did. Ethical point of view is a first-person perspective (as cited in Velasquez, Andre, Shanks, & Meyer, 2010). Ethics is a well-founded standard of right and wrong. Besides the idea of what is right, ethical point of view involves a wide range of issues (O’Kelly & Dubnick, 2006). In McGuire’s case, this wide range of issue includes, but not limited to, the mental framework and history of the defendant. It is noteworthy that the prosecutor has the legal and ethical obligations to achieve justice (Zacharias, 2005). People may have different interpretation to the idea of sentencing disparity, however, this disparity is clearly not a “self-defining concept” (Cole, 1997). There must be a coherent underlying theory of punishment among prosecutors. Moreover, prosecutors ought to have a sense of ethics. Conclusion Sentencing disparity appears to be inevitable. The variable prosecutorial discretion makes disparity possible. There are three factors shaping prosecutorial discretion: legal, extralegal, and resources issues. The most important factor among these three is the resources issue. Resources largely determine the pursuance or cessation of a prosecution trial. Taken individually, the discretion of the overzealous prosecutor or the plea-bargain prosecutor is not equitable. It does not render justice to the case in question. A prosecutor who seeks and pursues a maximum sentence fails to consider other relevant factors. And a prosecutor who adheres and settles for a minimum sentence also fails to abide to his or her legal and ethical obligations. When taken together, however, sentencing disparity is justifiable. Two different views are contested to explore and examine the validity of their opposing arguments. To my mind, this kind of sentencing disparity permits the case in question to avoid extreme maximum penalty and minimum sentence. References Alschuler, A. W. (2005). Disparity: The normative and empirical failure of the federal guidelines. Stanford Law Review, 58 (1), 85+. Bibas, Stephanos. (2010). Examining modern approaches to prosecutorial discretion: The need for prosecutorial discretion. Temple Political & Civil Rights Law Review, 19 (2), 369+. Christianson, S. (2004). Innocent: Inside wrongful conviction cases. New York, NY: New York University Press. Clear, T. R., Cole, G. F., & Reisig, M. D. (2009). American corrections (8th ed.). Belmont, CA: Thomas Wadsworth. Cole, K. (1997). The empty idea of sentencing disparity. Northwestern University Law Review, 91 (4), 1336+. Lucas, J. W., Graif, C., Lovaglia, M. J. (2008). Prosecutorial misconduct in serious cases: Theory and design of a laboratory experiment. In C. Horne & M. J. Lovaglia (Eds.), Experiments in criminology and law: A research revolution (pp. 119-136). Plymouth, UK: Rowman & Littlefield Publishers. Franklin, T. W. (2010). The interaction of defendant’s race, gender, and age in prosecutorial decision making. Journal of Criminal Justice, 38 (2), 185-192. Gaines, L. K., & Miller, R. L. (2009). Criminal justice in action (5th ed.). Belmont, CA: Thomas Wadsworth. Henderson, W. (2000). Justice on trial: Racial disparities in the American criminal justice system. Darby, PA: DIANE Publishing. Kramer, J. H., & Ulmer, J. T. (1996). Sentencing disparity and departures from guidelines. Justice Quarterly, 13 (1), 81-106. O’Kelly, C., & Dubnick, M. J. (2006). Taking tough choices seriously: Public administration and individual moral agency. Journal of Public Administration Research and Theory, 16 (3), 393+. Poulin, A. B. (1997). Prosecutorial discretion and selective prosecution: Enforcing protection after United States v. Armstrong. American Criminal Law Review, 34 (3), 1071-1125. Roberts, J. V. (1999). Sentencing trends and sentencing disparity. In J. V. Roberts & D. P. Cole (Eds.), Making sense of sentencing (pp. 139-159). Toronto, CA: University of Toronto Press. Siegel, L. J. (2008). Essentials of criminal justice (6th ed.). Belmont, CA: Wadsworth Cengage Learning. Thomson, R. J., & Zingraff, M. T. (1981). Detecting sentencing disparity: Some problems and evidences. The American Journal of Sociology, 86 (4), 4+. Velasquez, M., Andre, C., Shanks, T., & Meyer, M. (2010). What is ethics? Issues in Ethics, 1 (1). Retrieved from http://www.scu.edu/ethics/practicing/decision/whatisethics.html. 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