Abstract
I. INTRODUCTION The dilemma of difference: by taking another person's difference into account . . . you risk reiterating the significance of that difference and, potentially, its stigma and stereotyping consequences. But if you do not take another person's difference into account - in a world that has made that difference matter - you may also recreate and reestablish both the difference and its negative implications. 1 This paper addresses the dilemma of difference, specifically that associated with the race of an offender, as it affects criminal sentencing under the federal sentencing guidelines mandated by the Sentencing Reform Act. 2 I argue that federal judges should continue to consider an offender's race as a mitigating factor 3 when imposing criminal sentences, despite language to the contrary in the guidelines and the enabling statute. 4 The sentencing decision is the "symbolic keystone of the criminal justice system." 5 It involves two competing concepts, both basic to the American legal tradition. First, we embrace the notion that sentences should fit the crime; two persons, convicted of the same or similar crimes, should receive similar punishment. On the other hand, we believe that punishment should be individualized; that is, courts should structure individual sentences to best meet the goals of the criminal law and the needs of society. 6 The history of sentencing theory is an attempt to balance these two sometimes conflicting demands. 7 The way we carry out that balancing is critical. The sentencing decision often entails stripping ...