At the end of Courts, Chapter Four (p. 229), there are two very good discussion questions. As these questions so beautifully complement each other, lets look at them both.
• How might the development of sentencing guidelines only serve to “structure” unfair sentencing practices?
• Why do some judges believe that plea bargaining has become an “arena for hidden disparity” when sentencing guidelines are enforced?
TEXT BOOK ;Forty Studies that Changed Criminal Justice: Explorations into the History of Criminal Justice Research 2nd Edition
Sentencing Guidelines and Hidden Disparities in Plea Bargaining: A Critical Examination
The implementation of sentencing guidelines within the American criminal justice system was originally intended to reduce judicial discretion, ensure uniformity in sentencing, and address disparities—particularly those related to race, class, and geography. However, as discussed at the end of Chapter Four in Forty Studies that Changed Criminal Justice, this structural reform may unintentionally perpetuate or even amplify the very injustices it sought to eliminate. The two discussion questions—how sentencing guidelines may “structure” unfair sentencing and why plea bargaining under these guidelines may promote “hidden disparity”—highlight the complex intersection between legal standardization and systemic inequality.
Structured Unfairness: The Irony of Sentencing Guidelines
Sentencing guidelines are often viewed as a rational response to disparities in punishment, offering a standardized framework for determining criminal penalties based on offense severity and criminal history. However, critics argue that these guidelines merely codify existing biases, thus creating a structured form of unfairness. By institutionalizing inflexible sentencing ranges, the guidelines can eliminate meaningful judicial discretion that might be used to consider mitigating circumstances, particularly those related to socioeconomic or cultural contexts. As a result, similarly situated individuals might receive vastly different sentences based solely on procedural nuances or the jurisdiction in which their case is tried.
More troubling is the fact that the guidelines can embed systemic biases under the guise of objectivity. For instance, aspects such as prior criminal history disproportionately affect communities of color due to historically biased policing practices. Thus, when sentencing decisions rely heavily on prior convictions, they reinforce a cycle of disadvantage. This structured unfairness undermines the goal of equitable justice by applying a veneer of consistency while maintaining, or even exacerbating, underlying inequalities.
Plea Bargaining and Hidden Disparities
Compounding the issue is the role of plea bargaining within the framework of sentencing guidelines. Judges and legal scholars alike have raised concerns that plea negotiations have become an “arena for hidden disparity.” While guidelines are designed to constrain judicial discretion at sentencing, they have little impact on the discretionary decisions made by prosecutors during plea deals. In fact, as formal sentencing becomes more rigid, prosecutors gain more power to shape case outcomes by determining the charges that a defendant will face—and, consequently, the potential sentence.
This shift in power introduces a new layer of disparity, one that is largely invisible to public scrutiny. Prosecutors may offer more favorable plea deals to defendants who have access to skilled legal representation, who are perceived as more “cooperative,” or who fit certain social or racial profiles. Conversely, marginalized individuals may feel compelled to accept harsher plea deals out of fear of receiving the maximum sentence allowed by the guidelines if convicted at trial. Because the majority of criminal cases are resolved through plea bargaining rather than trial, these disparities have significant implications for the fairness of the entire system.
Moreover, the secretive nature of plea negotiations makes it difficult to monitor or address these inconsistencies. While sentencing decisions made by judges are typically part of the public record and subject to appeal, plea bargains often happen behind closed doors. The lack of transparency and oversight in prosecutorial decision-making allows biases to persist unchecked, reinforcing the very disparities that sentencing guidelines were supposed to eliminate.
Conclusion
While sentencing guidelines were introduced with the laudable goal of promoting fairness and consistency in the criminal justice system, they may unintentionally perpetuate structured unfairness and enable hidden disparities, particularly through the plea bargaining process. As judicial discretion is curtailed by rigid rules, prosecutorial discretion expands—creating a justice system that remains susceptible to bias, but in less visible and more insidious ways. Addressing these issues requires not only reforming sentencing guidelines themselves but also increasing transparency and accountability within the plea bargaining process. Only through such comprehensive reforms can the criminal justice system move closer to its ideal of equal justice under law.