DEFINING THE PROPER ROLE OF "OFFENDER CHARACTERISTICS" IN SENTENCING DECISIONS: A CRITICAL RACE THEORY PERSPECTIVE

In 2016, the news media in the United States widely reported the case of Brock Turner, a young white college athlete from Stanford who was convicted of sexual assault but spared the mandatory term of imprisonment. The American public was outraged at the leniency of the sentence imposed. A campaign was launched to remove from the bench the judge who rendered the sentence, and commentators accused him of racial and gender bias. However, this case was hardly an isolated incident of apparent privilege in criminal justice. In this Article, I argue that the problem resides primarily in the tradition of the law, not the fairmindedness of the judge. I specifically argue that the way in which courts weigh offender characteristic factors in sentencing is unfair and unjust. That court practice emerged in the late nineteenth century with a call to punish offenders according to their individual character. During that historical period, the word "character" was commonly understood to refer to inherent traits that were often associated with race. The assertion that non-white people had inferior character was cited as justification for their social oppression. The law about offender characteristic factors developed in accordance with that understanding of what constitutes good character. Thus, good character was assessed largely in terms of intrinsic (racial) superiority and material success. I argue that white cultural values are deeply embedded in the practice of weighing offender characteristic factors at sentencing, such that judges often cite the incidents of privilege in mitigation, e.g., educational attainment and employment status. Similarly, judges often cite the incidents of disadvantage in aggravation. I reject that logic under both retributive and utilitarian perspectives, arguing that fair sentencing requires dismantling the logic of privilege in sentencing.