Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker

Abstract

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. What has been the result of reintroducing greater judicial discretion on inter-judge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned? This Article utilizes new data covering over 600,000 criminal defendants linked to sentencing judge to undertake the first national empirical analysis of interjudge disparities post Booker. The results are striking: inter-judge sentencing disparities have doubled since the Guidelines became advisory. Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker. Newer judges appointed after Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime. Disentangling the effect of various actors on sentencing disparities, I find that prosecutorial charging is a prominent source of disparities. Rather than charge mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, the Article suggests that recent sentencing proposals that call for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.