Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums

Abstract

The U.S. Sentencing Guidelines restrict judicial discretion in part to reduce unwarranted racial disparities. However, judicial discretion may also mitigate disparities if judges use discretion to offset disparities emanating from prosecutorial discretion or sentencing policies that have a disparate impact. To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges' discretion to depart from the Guidelines. We find that racial disparities are either reduced or little changed when the Guidelines are made less binding. Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums, which have a disparate impact on minority offenders. Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.

Judging the Judiciary by the Numbers: Empirical Research on Judges

“…The data here are mixed, with one study of state courts showing greater racial disparities in states with less restrictive sentencing systems (Wang et al 2013). Studies of the federal system, however, show no such increase after the guidelines became less restrictive in 2005 (Fischman & Schanzenbach 2012). …”

Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing

“…1 Some scholars have even argued that judicial discretion may actually mitigate recent increases in racial disparities (Fischman andSchanzenbach 2012, Starr and. 2 In light of possible evidence of increasing disparities post Booker, the United States Sentencing Commission and policymakers have considered possible ways to constrain judicial discretion, such as "resurrecting" the mandatory Guidelines (Sessions 2011).…”

“…Many scholars have suggested that judges have different sentencing philosophies (e.g., Hofer, Blackwell, and Ruback 1999), which may be affected by the standard of appellate review (Fischman and Schanzenbach 2011), with correlations between sentencing practices and judicial characteristics such as race, gender, and political affiliation (Welch 1988, Schanzenbach 2005, Schanzenbach and Tiller 2007, Schanzenbach and Tiller 2008. However, prior empirical research on inter-judge disparity and the impact of judicial demographics on sentencing practices has been hampered by the lack of judge identifiers.…”

Locating the Judge within Sentencing Research

“…Presumptive sentencing guidelines (mandatory and voluntary) have been implemented to limit that discretion and so reduce unwarranted sentencing disparities. Studies of sentences that depart from guidelines or recommendations aim to isolate the sentencing disparity attributable to the sentencing judge (Bushway et al 2012;Bushway and Piehl 2001;Fischman and Schanzenbach 2012). For example, using data from the US state of Maryland, Bushway and Piehl find 'that African Americans have 20 per cent longer sentences than whites, on average, holding age, gender, and recommended sentence length from the guidelines constant ' (2001: 761).…”

“…Claims about the judge, or judicial subjectivity, are sometimes inferred from correlations between the variables used to investigate sentencing patterns. Investigating variations, trends, disparities and disadvantage in sentencing outcomes entails modelling the effects of a series of independent variables on sentences (for example, Bushway and Piehl 2001;Bushway et al 2012;Fischman and Schanzenbach 2012;Light 2014;Wooldredge et al 2011). Typical independent variables relate to the nature of the offence and offender characteristics, usually race/ethnicity, gender, age and socio-economic status (Bond and Jeffries 2012;Doerner and Demuth 2010;Hood 1992;Jeffries and Bond 2013;Shute et al 2013).…”