The empty idea of sentencing disparity

Northwestern University Law Review

Volumn 91, Issue 4, 1997, Pages 1336-1340

  Cole, Kevin ^a  

^a NONE

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EID: 0347306336     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (14)

1. U.S. SENTENCING GUIDELINES MANUAL ch. 1, pt. A. § 3, at 3 (1995) [hereinafter U.S.S.G.].
2. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982). Westen convincingly handles his critics in Peter Westen, To Lure the Tarantula from Its Hole: A Response, 83 COLUM. L. REV. 1186 (1983), and Peter Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 MICH. L. REV. 604 (1983). See also PETER WESTEN, SPEAKING OF EQUALITY: AN ANALYSIS OF THE RHETORICAL FORCE OF EQUALITY IN MORAL AND LEGAL DISCOURSE (1990).
3. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982). Westen convincingly handles his critics in Peter Westen, To Lure the Tarantula from Its Hole: A Response, 83 COLUM. L. REV. 1186 (1983), and Peter Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 MICH. L. REV. 604 (1983). See also PETER WESTEN, SPEAKING OF EQUALITY: AN ANALYSIS OF THE RHETORICAL FORCE OF EQUALITY IN MORAL AND LEGAL DISCOURSE (1990).
4. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982). Westen convincingly handles his critics in Peter Westen, To Lure the Tarantula from Its Hole: A Response, 83 COLUM. L. REV. 1186 (1983), and Peter Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 MICH. L. REV. 604 (1983). See also PETER WESTEN, SPEAKING OF EQUALITY: AN ANALYSIS OF THE RHETORICAL FORCE OF EQUALITY IN MORAL AND LEGAL DISCOURSE (1990).
5. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982). Westen convincingly handles his critics in Peter Westen, To Lure the Tarantula from Its Hole: A Response, 83 COLUM. L. REV. 1186 (1983), and Peter Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 MICH. L. REV. 604 (1983). See also PETER WESTEN, SPEAKING OF EQUALITY: AN ANALYSIS OF THE RHETORICAL FORCE OF EQUALITY IN MORAL AND LEGAL DISCOURSE (1990).
6. U.S.S.G., ch. 1, pt. A, § 3, at 2.
7. Cf., e.g., Steven J. Schulhofer, Assessing the Federal Sentencing Process: The Problem is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833 (1992) (using the Guidelines' terminology but arguing that the sentences imposed under the Guidelines are often undeserved).
8. See U.S.S.G. § 2B3.1(b)(2): (A) If a firearm was discharged, increase [offense level] by 7 levels; (B) If a firearm was otherwise used, increase by 6 levels; (C) If a firearm was brandished, displayed, or possessed, increase by 5 levels . . . . See also id. § 2B3.1(b)(3) (enhancing offense level in one-level increments between 2 and 6 levels depending on whether a victim suffers "bodily injury," "serious bodily injury," "permanent or life-threatening bodily injury," or an injury falling between the categories).
9. See id., ch. 1, pt. A, § 3, at 3.
10. Id. §§ 5H1.1-5J1.1.
11. Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 908-15 (1991).
12. While a retributivist will not trade just sentences for social gains generally, a retributivist might forego some just sentences to avoid a greater number of unjust sentences.
13. Stating reasons for a sentence also can respond to this concern, but when discretion is unfettered, the reasons will rarely seem convincing in explaining fully how the judge arrived at the precise sentence imposed.
14. For a similar proposal, see Alschuler, supra note 8, at 939-49.