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Fischman & Schanzenbach on Judicial Discretion & Federal Sentencing

By Lawrence Solum

Joshua B. Fischman and Max M. Schanzenbach (University of Virginia School of Law and Northwestern University - School of Law) have posted Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines on SSRN. Here is the abstract:

This paper examines the role judicial discretion plays in enhancing or mitigating racial disparity in federal sentencing. The United States Sentencing Guidelines created a detailed framework for criminal sentencing, motivated in part by a desire to reduce unwarranted racial disparities. Although the Guidelines substantially constrain sentencing discretion, a judge may depart from the Guidelines if the judge determines that the case is sufficiently unique. Over the Guidelines? history, the Supreme Court and Congress have changed appellate review standards for these sentencing departures, alternating between a strict de novo standard and a more deferential ?abuse of discretion? standard. If judicial adherence to the Guidelines reduces racial disparities, then racial disparities should be lower under a de novo review standard. On the other hand, judicial discretion may permit judges to mitigate structural biases created by the Guidelines or the biases of other actors, such as prosecutors, in which case disparities could be larger under a de novo standard. We find that a deferential standard of review reduces racial disparities in the relative departure rate and at times reduces racial disparities in prison sentences. In other words, when review is strict (de novo), judges adhere more to the Guidelines but racial disparities increase. We present some very preliminary evidence that the recent Supreme Court decisions making the Guidelines merely ?advisory? have increased racial disparities. We cautiously conclude that the disparity-minimizing sentencing regime is one of deferential review under mandatory Guidelines.

Full post as published by Legal Theory Blog on July 12, 2010 (boomark / email).