38 Ariz. St. L.J. 561 (2006)
Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline Sentencing

handle is hein.journals/arzjl38 and id is 569 raw text is: JUST DESERTS, PRISON RAPE, AND THE
Mary Sigler'
[B]y choosing a shorter period of incarceration, and thereby
diminishing the likelihood that Gonzalez would be assaulted
in prison, the court sensibly balanced Gonzalez's need for
safety against the Government's interest in incarcerating
Chief Judge Oakes, United States v. Gonzalez'
The reduced sentence.., seems to have no logical basis. If
Gonzalez is assaulted on numerous occasions during his 33-
month sentence, then his sentence will have been inhumanely
Judge Winter, United States v. Gonzalez (dissenting)2
Today I will be talking about the problem of prison rape from the
perspective of criminal sentencing. I will be focusing particularly on
guideline sentencing and raising what I hope will be troubling questions
about our sentencing practices. To be sure, the viability of the Federal
Sentencing Guidelines in the wake of Booker' and Blakely4 is uncertain, and
I will not be weighing in on that debate. For my purposes, the fate of the
Guidelines is less important than what our experience with the Guidelines
suggests about the possibility of taking inmate vulnerability into account in
criminal sentencing. In particular, it raises questions about what it means for
punishment to be deserved, what it means to treat like cases alike, and, in
view of these considerations, whether it is possible or desirable to take
inmate vulnerability into account in criminal sentencing.
Let me begin by outlining my approach. First, I will spend just a few
minutes talking about the institution of punishment in American criminal
law, including the prevailing justifications and their implications for prison
t   Associate Professor, Arizona State University College of Law. J.D., University of
Pennsylvania (2000); Ph.D., Arizona State University (2003).
1. United States v. Gonzalez, 945 F.2d 525, 527 (2d Cir. 1991).
2.  Id. at 529 (Winter, J., dissenting).
3.  United States v. Booker, 543 U.S. 220 (2005).
4. Blakely v. Washington, 542 U.S. 296 (2004).

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