The Effects of the Offender's Race, Ethnicity, and Sex on Federal Sentencing Outcomes in the Guidelines Era

Article excerpt

I INTRODUCTION

Social scientists have conducted dozens of studies designed to untangle the relationship between race and sentence severity. (1) In fact, this issue "may well have been the major research inquiry for studies of sentencing in the 1970s and early 1980s." (2) Many of these early studies focused on the direct effect of race on sentencing, asking whether black, and occasionally Hispanic, offenders were sentenced more harshly than white offenders. Recent research, however, has taken a more theoretically and methodologically sophisticated approach. (3) Rather than asking whether race and ethnicity make a difference, recent studies attempt to identify the circumstances under which or the contexts in which race matters.

Most researchers testing for the indirect or interactive effects of race and ethnicity on sentencing have focused on determining whether the combination of the offender's race or ethnicity and other legally irrelevant offender characteristics--especially sex and age--produces greater sentence disparity than race or ethnicity alone. The bulk of this research has been conducted using data from state courts in the United States. Although the results are somewhat inconsistent, these studies generally demonstrate that certain categories of racial minorities--males, the young, and the unemployed--are singled out for harsher treatment. Some studies found that each of these offender characteristics had a direct effect on sentence outcomes, but that the combination of race or ethnicity and one or more of the other characteristics was a more powerful predictor of sentence severity than any characteristic individually. (4) Other studies using data from federal courts found that race and ethnicity had an effect only when the offender was male (5) or that the effects of sex, employment status, and other offender characteristics were confined to members of a particular racial or ethnic group. (6)

Research exploring the indirect effects of the offender's race, ethnicity, and sex on sentence severity by way of earlier decision points is much more limited. This is especially true of research focusing on offenders adjudicated in federal district courts. Although some research has examined whether black and Hispanic offenders receive harsher sentences than white offenders as a result of pretrial detention (7) or a lower likelihood of receiving a downward departure, (8) the literature lacks research that systematically analyzes whether racial minorities and males experience a cumulative disadvantage in sentencing as a result of unwarranted disparity at these earlier more discretionary decision points.

The purpose of this paper is to examine the direct, indirect, and interactive effects of race, ethnicity, and sex on sentence severity. Using data on offenders convicted of drug-trafficking offenses in three U.S. district courts, this article explores (1) whether black and Hispanic offenders are sentenced more harshly than white offenders and whether male offenders are sentenced more harshly than female offenders; (2) whether black and Hispanic offenders are more likely than white offenders and whether male offenders are more likely than female offenders to be held in custody prior to adjudication and, as a result, receive harsher sentences; (3) whether black and Hispanic offenders are less likely than white offenders and whether male offenders are less likely than female offenders to receive downward departures for providing substantial assistance and, as a result, receive harsher sentences; and (4) whether the effects of the offender's race and ethnicity are conditioned by the offender's sex.

The next section discusses the federal sentencing process, with a focus on the ways in which the federal sentencing guidelines constrain the discretion of judges, as well as the decision rules that guide judges' pretrial detention decisions and prosecutors' substantial assistance decisions. …