Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline Sentencing

This essay reflects on the relevance, if any, of inmate vulnerability as a basis for sentencing determinations. It is widely recognized that some criminal offenders are more vulnerable to abuse at the hands of other inmates—especially young men of small stature and those convicted of sex crimes. This suggests that prison terms of identical length are likely to be experienced quite differently by different types of inmates. The Federal Sentencing Guidelines, which reflect a commitment to both uniformity and proportionality in criminal sentencing, provide for a downward departure in cases of extraordinary vulnerability. This policy decision is both welcome and somewhat troubling. Because an inmate subject to sexual abuse will have a harsher prison experience than inmates not subject to such abuse, it seems appropriate to give the most vulnerable inmates a shorter sentence. At the same time, shorter sentences for inmates convicted of similar offenses seems to be at odds with the values of uniformity and proportionality. Moreover, this approach to the problem of inmate-on-inmate abuse is woefully inadequate. The most vulnerable inmates will almost certainly be victimized, albeit for a lesser period of time; and even inmates who do not meet the strict vulnerability criteria may themselves be subject to abuse