Opening the “Black Box” of Federal Illegal Reentry Sentencing: A Non-Participant Observational Analysis of Sentencing Constraints and Judicial Discretion

Abstract

Judicial discretion in sentencing has historically produced disparities in criminal sentencing outcomes. In an effort to address disparity at the federal level, in 1984, the U.S. Congress passed legislation that led to the creation of the U.S. Sentencing Commission and subsequently the adoption of federal sentencing guidelines. Studies show that even among similarly situated defendants (in terms of offense score and criminal history category) disparities have persisted regardless of the sentencing guidelines. An understudied source of disparity is the combined and interactive role of judges, prosecutors, and defense attorneys in the application of the guidelines and the statutory framework that informs sentencing. The current study examines sentencing for the federal offense of illegal reentry of removed aliens (8 U.S. Code §1326) in one division of a U.S. District Court. This study reports data from direct non-participant observation of sentencing hearings and publicly available court records. Findings reveal sources of sentencing disparity among similarly situated cases that are not readily illuminated by the yearly quantitative data provided by the U.S. Sentencing Commission. The findings suggest that disparity in the sentencing of similarly situated illegal reentry defendants is influenced by differential judicial interpretation of and use of the tools made available to them in the sentencing guidelines and the statutory sentencing authority.