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.
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.
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