Sentence Disparity, Use of Incarceration, and Plea Bargaining: The Post-Guideline View from the Commission

Abstract

similar crimes. For these fairly homogeneous sets of cases the Commission compared the range of sentences imposed prior to the guidelines with those imposed under the guidelines. A uniform sentenc ing system would require each judge to impose the same sentence. The degree to which sentences differ reflects one form of sentence disparity.1 The Commission analyzed four offenses: bank robbery, bank embezzlement, trafficking in heroin, and trafficking in cocaine. Within each offense type defendants were selected whose offenses, criminal records, and method of disposition (e.g., guilty plea, cooperation, etc.) were sufficiently alike that all had the same offense level and criminal history score. Some defendants had been sentenced prior to enactment of the guidelines; others were sentenced under the guidelines. Variation in sentence imposed and time served were compared before and after the guidelines. The comparison of sentences imposed before and after the guidelines seems pointless. While sentences imposed under the guidelines specify times to be served (except for modest good time provisions), pre-guideline sentences set only upper and lower limits on prison time. This comparison is irrelevant to a discussion of sentence disparity. The meat of this analysis is the other half: comparing projected time to be served for sentences imposed prior to the guidelines with time served for sentences imposed under the guidelines.2 Unfortunately, two of the offense types are unsuitable for this analysis. Pre-guideline defendants convicted of trafficking in heroin and cocaine were convicted prior to the Anti-Drug Abuse Act of 1986 (ADA86) and the Anti-Drug Abuse Act of 1988 (ADA88). Because these two laws enacted manda tory minimum prison terms, the new laws probably would have reduced sentence disparity regardless of how the guidelines operated. Thus, another quarter of the Commission's analysis seems relatively unin formative.