Discretion and Disparity Under Sentencing Guidelines: The Role of Departures and Structured Sentencing Alternatives

• NCJ Number: 201190
• Journal: Criminology Volume: 41 Issue: 1 Dated: February 2003 Pages: 99-130
• Author(s): Rodney L. Engen; Randy R. Gainey; Robert D. Crutchfield; Joseph G. Weis
• Date Published: February 2003
• Length: 32 pages
• Publication Format: Article
• Publication Type: Research (Theoretical)
• Language: English
• Country: United States of America

Annotation

This article explores how the use of alternative sentencing provisions may allow room for discretionary sentencing disparity and specifically examines the use of alternative sentencing mechanisms in Washington State.

Abstract

Although presumptive sentencing guidelines, which have been implemented in State and Federal courts, were designed to limit judicial discretion and thus unwarranted disparities in criminal sentencing, many allow for alternative sentencing provisions that effectively hand back some degree of judicial discretion. Concern ensues when the use of alternative sentencing provisions overwhelmingly disadvantages minority defendants, as some researchers have claimed. The authors begin by critically reviewing the research literature on the use of alternative sentencing provisions and sentencing disparity. An overview of the sentencing guidelines and alternatives in Washington State is offered, followed by a theoretical discussion of discretionary and structured sentencing alternatives. The authors contend that these alternatives to the guidelines are theoretically relevant because they offer a departure from the formal rationality inherent in grid-based sentencing guidelines. It is further argued that the use of discretionary sentencing alternatives opens a door for sentencing disparities based on factors other than the offense; factors such as offender characteristics, including race and gender. The authors look specifically at the use of offender characteristics in discretionary judicial decisionmaking in Washington State. Their analysis reveals that males and minority defendants are less likely to receive sentences below the standard range. However, the analysis also reveals that race and gender have inconsistent effects on discretionary sentencing above the standard range. Future research should focus on the impact that prosecutorial discretion may have on judicial use of discretionary sentencing alternatives. Tables, references