Sentencing Disparity Research Articles

Racial and Ethnic Disparities in Federal Sentencing: A Quantile Regression Approach

The Sentencing Guidelines explicitly prohibit the use of demographic characteristics in determining prison sentence, yet researchers continue to find evidence of disparity in sentences on the basis of race, ethnicity and gender. We employ a quantile regression technique that estimates the black-white sentencing gap across the entire sentencing distribution, rather than only at the mean. We also analyze sentencing disparity based on whether the offender is Hispanic. Our results show that racial disparity exists for specific types of offenses (Drug Trafficking, Drug Possession and Firearms crimes); however, the impact of race varies greatly dependent on the location along the sentencing distribution. Ethnic disparity is limited to the crime of Drug Trafficking. The sentencing disparity that exists is largely due to departures from the Sentencing Guidelines from offenders providing substantial assistance to the government and district judges imposing sentences outside the guidelines.

Sex and Sentencing Disparity in South Australia's Higher Courts

In Australia, studies examining sex differences in sentencing are limited. Using data from South Australia's higher courts, this article explores a study on the impact of sex on the decision to imprison and the length of imprisonment. After adjusting for past and current criminality, results showed that men were significantly more likely than women to be sentenced to a term of imprisonment and that when sentence length was decided, men received longer periods of incarceration. Furthermore, the study's results suggest that different factors may be important in determining sentencing outcomes for women and men.

Modeling the Politics of Punishment: A Contextual Analysis of Racial Disparity in Drug Sentencing

This study uses Tobit to assess contextual punishment determinants for a large sample of felony drug cases that reached final disposition in 1990. After statistically holding constant ascribed and legal variables, the authors find that punishments for African American defendants in drug-related cases varied by social and political context. African American defendants adjudicated in jurisdictions characterized by a large Black population received reduced punishments; but in jurisdictions that were characterized by strong law-and-order political support, Black defendants received longer sentences. After introducing these interactions, Blacks faced on average reduced penalties for drug crimes. Blacks were the recipients of adjusted sentencing but not in the uniformly harsh direction proposed by much of the sentencing research. In sum, the results of this research add to the growing literature documenting the political foundations of punishment patterns in the U.S. criminal courts.

Demography of the Legal Profession and Racial Disparities in Sentencing

The demography of the legal profession has changed rather dramatically in recent decades, yet the consequences of a more racially and ethnically diverse pool of lawyers for the administration of justice have not received significant attention. The present research examines how the racial composition of the local legal profession affects one facet of criminal law: the sentencing of convicted defendants. Building on prior work in the fields of law, stratification, and mobility, we hypothesize that racial and ethnic disparities in sentencing are mitigated where the legal profession is more diverse. In line with this hypothesis, analysis of data from a sample of large urban counties taken between 1990 and 2002 shows that the black-white racial disparity in sentencing attenuates as the number of black attorneys in the county increases, net of the percent black in the county and other possible confounding variables. Comparable results are found for Hispanics. The findings are discussed in the context of a demographically changing legal profession and prior work on racial disparities in the justice system.

Assessing the Differential Effects of Race and Ethnicity on Sentence Outcomes Under Different Sentencing Systems

Although many states have adopted sentencing guidelines, questions remain about whether guidelines achieve one of their primary goals—reducing disparities that arise from such extralegal factors as race and ethnicity. To date, research has not taken a cross-state approach to testing for racial or ethnic disparity in sentences imposed in guideline and nonguideline states or to examining whether less disparity exists in states with voluntary or presumptive guidelines. To address this research gap and inform sentencing scholarship, data from the State Court Processing Statistics program are used to determine whether offenders’ race or ethnicity affects incarceration and sentence length decisions in jurisdictions with different types of sentencing systems. Implications of the findings for theory, research, and policy are discussed.

Does Racial Balance in Workforce Representation Yield Equal Justice? Race Relations of Sentencing in Federal Court Organizations

Increasing racial and ethnic group representation in justice-related occupations is considered a potential remedy to racial inequality in justice administration, including sentencing disparity. Studies to date yield little evidence of such an effect; however, research limitations may account for the mixed and limited evidence of the significance of justice workforce racial diversity. Specifically, few studies consider group-level dynamics of race and representation, thus failing to contextualize racial group power relations in justice administration. To consider these contextual dynamics we combine court organizational and case-level data from 89 federal districts and use hierarchical models to assess whether variably “representative” work groups relate to district-level differences in sentencing. Using district-specific indexes of population and work group dissimilarity to define representation, we find no relationships between black judge representation and sentencing in general across districts, but that districts with more black representation among prosecutors are significantly less likely to sentence defendants to terms of imprisonment. We also find in districts with increased black representation among prosecutors, and to a lesser degree among judges, that black defendants are less likely to be imprisoned and white defendants are more likely to be imprisoned, with the effect of narrowing black-white disparities in sentencing. Consistent with the “power-threat” perspective, and perhaps “implicit racial bias” research, findings encourage modeling diversity to account for relative racial group power in processes of social control and suggest that racial justice may be moderately advanced by equal representation among authorities.

The Effects of Booker on Inter-Judge Sentencing Disparity

104 Federal Sentencing Reporter, Vol. 22, No. 2, pp. 104–108, ISSN 1053-9867 electronic ISSN 1533-8363. ©2010 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2009.22.2.104. The Effects of Booker on Inter-Judge Sentencing Disparity

Reducing Sentencing Disparity by Increasing Judicial Discretion

81 Federal Sentencing Reporter, Vol. 22, No. 2, pp. 81–84, ISSN 1053-9867 electronic ISSN 1533-8363. ©2010 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2009.22.2.81. Reducing Sentencing Disparity by Increasing Judicial Discretion

“The Price of Being Mexican”: Sentencing Disparities Between Noncitizen Mexican and Non-Mexican Latinos in the Federal Courts

With the increasing discourse about a crime-immigration nexus and Latinos, it is critical to ascertain how the criminal justice system responds to noncitizen Latino defendants. Using federal sentencing data to investigate the role of national origin and immigration status on noncitizen Latinos’ sentencing outcomes, several findings emerge. First, national origin conditions the sentences received for Mexicans and non-Mexican Latinos. Second, immigration status perpetuates disparities among defendants within each Latino subgroup. Third, examining the aggravating factors within each immigration status category shows that national origin poses greater sentencing penalties for Mexican defendants.

Is Justice Blind? An Examination of Disparities in Homicide Sentencing in Colombia, 1980-2000

Evidence has repeatedly shown that disparities in crime sentences can be attributed to certain variables considered outside the legal dimensions of the case. The majority of research that investigates factors that contribute to such disparities has primarily focused on crimes of varying severities adjudicated in the U.S. court system. We expand research on this topic by focusing on disparities in homicide sentences using data from over 9000 homicide cases tried in Colombia from 1980 – 2000. We specifically explore whether judges use substantive rationality when deciding the length of the offender’s sentence and if the sentence should be above the legal minimum set for the severity of the crime according to the criminal code under which it is adjudicated. Results reveal that disparities in homicide sentences can be attributed to extra-legal variables such as: the city in which the homicide trial took place, where the body of the victim was retrieved, and whether the defendant was identified by an ID parade. However, we also find evidence that suggests that legal variables such as the defendant’s previous criminal record and the aggravating circumstances of the case engender greater differences in sentence outcomes than non-legal variables previously mentioned. Explanations and policy implications are discussed.

Inter-Judge Sentencing Disparity After Booker: A First Look

A central purpose of the Sentencing Reform Act was to reduce inter-judge sentencing disparity, driven not by legitimate differences between offenders and offense conduct, but by the philosophy, politics, or biases of the sentencing judge. The federal Sentencing Guidelines, despite their well-recognized deficiencies, succeeded in reducing that form of unwarranted disparity. But in a series of decisions from 2005 to 2007, the Supreme Court rendered the Guidelines advisory (Booker), set a highly deferential standard for appellate review (Gall), and explicitly authorized judges to reject the policy judgments of the Sentencing Commission (Kimbrough). Since then, the Commission has received extensive anecdotal reports of a surge in inter-judge disparity at sentencing.This Article provides the first empirical evidence of inter-judge sentencing disparity since the Supreme Court upended federal sentencing, drawing on an original new dataset of sentences from the District of Massachusetts — the only district court that makes key sentencing documents available to the public. The data indicate a clear increase in inter-judge sentencing disparity, both in sentence length and in guideline sentencing patterns. Since Booker, Kimbrough, and Gall, the effect of the judge on sentence length has more than doubled in strength. In cases not subject to a mandatory minimum, the difference between the court’s more lenient and more severe judges translates into an average of more than two years in prison. The decisions also have altered guideline sentencing patterns. Some “business as usual” judges continue to sentence below the guideline range at essentially the same rate as before Booker, while other “free at last” judges now sentence below the guideline range at triple or quadruple their pre-Booker levels.In explaining the spike in inter-judge sentencing disparity, the Article casts doubt on the conventional theories that persistent within-guideline sentencing is the product of inertia, fear of reversal, anchoring effects, strategic behavior, or simple laziness. Instead, it proposes that some judges actually agree with the Guidelines or consciously choose to impose within-range sentences for institutional reasons.

U.S. ATTORNEYS AND SUBSTANTIAL ASSISTANCE DEPARTURES: TESTING FOR INTERPROSECUTOR DISPARITY*

An important and highly discretionary component of the federal sentencing guidelines is the downward departure for providing substantial assistance. Critics charge that the substantial assistance departure, which requires a motion by the prosecutor, may produce the type of unwarranted sentencing disparity that the guidelines were intended to eliminate. Research reveals, for example, that jurisdictional variations are evident in the use of substance assistance departures (Johnson, Ulmer, and Kramer, 2008; Nagel and Schulhofer, 1992), and that the likelihood of receiving the departure is affected by legally irrelevant offender characteristics, which include race, ethnicity, and gender (Mustard, 2001). The purpose of this article is to extend this research by exploring the degree to which decisions regarding substantial assistance departures vary across prosecutors. Using data on offenders sentenced in three U.S. district courts and a multilevel modeling strategy, we investigate whether interprosecutor disparity exists in the likelihood of substantial assistance departures and in the criteria that prosecutors use in deciding whether to file a motion for a substantial assistance departure. Findings indicate that significant interprosecutor variation remains after taking into account offender characteristics, case characteristics, and the district in which the case is adjudicated.

Modeling the Distribution of Sentence Length Decisions Under a Guidelines System: An Application of Quantile Regression Models

How should sentencing disparity be assessed when decisions are constrained under a sentencing guidelines system? Much of the debate over the measurement of sentence disparity under a guidelines system has focused primarily on using specific values from within the sentencing grid (e.g., minimum recommended sentence) or on using interaction terms in regression models to capture the non-additive effects of offense severity and prior record on length of sentence. In this paper, I propose an alternative method for assessing sentencing disparity that uses quantile regression models. These models offer several advantages over traditional OLS analyses (and related linear models) of sentence length, by allowing for an examination of the effects of case and offender characteristics across the full distribution of sentence lengths for a given sample of offenders. The analysis of the distribution of sentence lengths with quantile regression models allows for an examination of questions such as: Do offender characteristics, such as race or offense severity, have the same effect on sentence length for the 10% of offenders who receive the shortest sentences as they do for the 10% of offenders who receive the longest sentences? I illustrate the application and interpretation of these models using 1998 sentencing data from Pennsylvania. Key findings show that the effects of case and offender characteristics are variable across the distribution of sentence lengths, meaning that traditional linear models assuming a constant effect fail to capture important differences in how case and offender characteristics affect punishment decisions. I discuss the implications of these findings for understanding sentencing disparitites, as well as other possible applications of quantile regression models in the study of crime and the criminal justice system.

Age and Sentencing Disparities among Murderers: An Examination of Nonlinear Effects

Age and Sentencing Disparities among Murderers: An Examination of Nonlinear Effects

Lowering Sentences for Illegal Immigrants: Why Judges Should Have Discretion to Vary from the Guidelines Based on Fast-Track Sentencing Disparities

“Fast-track” programs are selectively implemented programs that give illegal reentry defendants a reduced sentence in exchange for a quick guilty plea and broad waiver of procedural rights. Typically found in Southwest border districts overburdened with illegal immigrants, these programs cause grave sentencing disparities because a defendant in a fast-track district will receive a lower sentence than a defendant in a non-fast-track district based simply on the geography of arrest. Circuits are divided as to whether a sentencing court in non-fast-track district is permitted to give a defendant a lower sentence because of this disparity. This Note suggests that the emerging split is the result of a collision between an immigration policy that focuses on prosecutions and developments in federal sentencing law, including United States v. Booker and Kimbrough v. United States. This Note argues that, under advisory Guidelines, district judges should have the discretion to grant lower sentences to avoid the disparity created by fast-track programs because the fast-track sentencing scheme falls short of a binding legislative mandate. Interpretation of Kimbrough provides the essential legal framework allowing a district court to vary from the Sentencing Guidelines. The legal interpretation of Kimbrough and policy considerations of transparency, uniformity, and 18 U.S.C. § 3553(a) resolve the current split.

Lawlessness in the Federal Sentencing Process: A Test for Uniformity and Consistency in Sentence Outcomes

One of the important goals of the federal sentencing guidelines was to reduce inter‐judge disparity in sentencing. In this paper, we test the assumption that structuring discretion produced uniformity in federal sentencing and consistency in the process by which judges arrive at the appropriate sentence. We also examine whether background characteristics of judges affect the sentences they impose on similarly situated offenders. We used hierarchical linear modeling, nesting the offenders in the judges that sentenced them in order to examine the sentencing decisions of federal judges in three U.S. District Courts. While we found that significant variation between judges in sentencing is largely accounted for by our level 1 characteristics, we also found that judges arrive at decisions regarding the appropriate sentence in different ways, by attaching differential weights to several of the legally relevant case characteristics and legally irrelevant offender characteristics.

Short‐ versus long‐term effects of Ohio's switch to more structured sentencing on extralegal disparities in prison sentences in an urban court*

Research Summary The impact of Ohio's presumptive guidelines on sentencing disparities was examined for one of the state's largest jurisdictions to determine whether the switch to more structured sentencing in 1996 had any enduring effects. Sentencing patterns were examined both before and shortly after the 1996 reform, as well as 9 years later. Findings revealed weaker race and marital status effects on imprisonment under guidelines versus stronger age effects, no changes in disparities based on a defendant's sex and means of support, and (virtually) no changes in the magnitude of legally relevant effects. Policy Implications Ohio's guidelines are more flexible relative to other guideline schemes, possibly accounting for the general stability in effects across regimes. Ohio has since transitioned to voluntary guidelines, which raised concerns that the change will yield higher levels of sentencing disparities. Findings suggest that the transition may coincide with no changes in legal effects, yet with greater disparities based on a defendant's race and marital status.

Race Effects of Representation among Federal Court Workers: Does Black Workforce Representation Reduce Sentencing Disparities?

Increasing racial group representation among justice professionals is considered a potential remedy to inequality in the administration of justice, including racial disparities in sentencing. Research shows mixed effects of decision maker race on sentencing. Most studies focus exclusively on the significance of individual judges' status characteristics, however, failing to consider racial group representation among other court actors. The authors consider whether such representation within and across multiple categories of court workers—judges, prosecutors, defense lawyers, and probation officers—relates to federal sentencing out comes. Findings reveal that the effect of defendant race on imprisonment decisions differs across judicial districts and is influenced by variable levels of black workforce representation. Specifically, districts with greater black representation among prosecutors are distinguished by more racially equitable odds of incar ceration. Conversely, increased black representation among probation officers is associated with greater disparity between the sentences of blacks and whites.

Does an Offender’s Age Have an Effect on Sentence Length?

Research exploring the effects of an offender’s age on unwarranted sentencing disparity has produced conflicting and inconclusive results. Some studies concluded that age was inversely correlated with sentencing severity, whereas others found a positive association. Still others found no significant impact of age on sentencing differentials or that age had a curvilinear effect. Given these inconsistencies, the present research uses meta-analytic methodology to assess empirical findings from a body of sentencing studies. In particular, this research focuses on the imposition of sentence length. Findings from this meta-analysis reveal that the age of the offender has no effect on the length of the prison term and that the strength of the association between the two variables is extremely weak. The homogeneity analysis indicates that variability in effect sizes across contrasts is not due simply to sampling error. A number of moderators related to sample and analytic characteristics account for the differences in effect sizes.

The Libby Letters: Reflections on Sentencing and Mercy in a Post-Booker World

Much has been written about the Booker revolution that led to the fall of the mandatory Federal Sentencing Guidelines. Because the Guidelines had been widely assailed as a rigid system that frequently led to unjust sentences, it comes as little surprise that most of the commentary has been celebratory. With the judiciary's new found discretion comes the chance to bring mercy back in from the cold after years of exile. Now, however, the hard work begins. The Guidelines, despite their shortcomings, were instituted in response to a very real problem of disparity in sentencing. The challenge that lies ahead, therefore, is to see if the legal system can accommodate the judiciary's new found discretion without slipping back into a system where a sentence might turn on race, socio-economic status, or the happenstance of which judge is assigned to the case. In short, while Shakespeare beautifully captured mercy's allure when he penned Portia's famous lines, The quality of mercy is not strain'd, it droppeth as the gentle rain from heaven, it turns out that giving voice to mercy in the nitty-gritty of a courtroom sentencing is surprisingly difficult. This Article uses the sentencing of Lewis Scooter Libby to explore the potential difficulties that lie ahead in a post-Booker world. Libby, who was Vice President Cheney's chief-of-staff, was tried and convicted for crimes coming out of his role in revealing that Valerie Plame was a CIA agent. Prior to his sentencing, a number of citizens submitted letters to the judge, some arguing that Libby deserved mercy based on factors like long public service, while others stated that justice demanded the most severe sentence possible. With their refreshingly non-legal perspectives on mercy and justice, these letters offer a rich trove of material for asking what factors warrant leniency. Using the lessons learned from the letters, the Article examines various ways that we might identify what mercy factors should be recognized. The Article concludes by looking at how judges might exercise their discretion to ensure that the virtue of mercy does not become an unintentional vice by allowing inequality and arbitrariness to creep back into sentencing.