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Law and Race Commons

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Social and Behavioral Sciences

Equality

2016

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What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas Jan 2016

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended ...