The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity
Hofer, Paul J., Blackwell, Kevin R., Ruback, R. Barry, Journal of Criminal Law and Criminology
A. THE GOALS OF SENTENCING REFORM
The sentencing reforms of the past twenty-five years have had several goals, including "truth in sentencing," control of prison populations, and reduction of unwarranted disparity. The first goal was easily achieved when parole was abolished and the sentence imposed became the sentence served. Control of prison populations proved more difficult, and careful evaluation is needed to determine whether sentencing reform helped to check, or may have accelerated, the steady rise in prison inmates and crowding of prisons.(1) Among the most important goals motivating reform at the federal level was reduction of unwarranted sentencing disparity.(2) Yet more than ten years after enactment of the Sentencing Reform Act of 1984 and implementation of the U.S. Sentencing Commission's guidelines, there is no consensus on whether they have reduced unwarranted disparity in federal sentences.
As reviewed below, the evidence is persuasive that, in the pre-guideline era, differences among judges in sentencing philosophies were the primary sources of unwarranted disparity. There are reasons to hope that the federal guidelines have been effective at controlling these differences: they are the most detailed guidelines ever developed, and they are mandatory. Judges can depart from the guidelines only for limited reasons that must be stated on the record, and that are then subject to appellate review. But these departures from the guidelines, as well as plea agreements that ignore the guidelines and inconsistencies in application of the guidelines, might reintroduce disparity into the system.
In this paper, after reviewing problems that have plagued earlier research, we conclude that the "natural experiment" created by the random assignment of cases to judges in many courthouses around the country provides the best opportunity to evaluate the success of the guidelines at reducing disparity. Although the natural experiment approach does not permit evaluation of disparity in individual cases, and does not permit direct examination of prosecutor-created disparity, it does allow us to draw some conclusions about the effect of the guidelines on inter-judge disparity. In particular, it permits precise measurement of changes in the "primary judge effect"--the overall tendency of some judges to be more lenient or severe than others, as measured by differences in average sentences among judges with comparable caseloads. We believe this is an important barometer of the success of the guidelines because it represents the "tip of the iceberg" of disparity that would be observed--and is observed in simulation studies--when identical cases are sentenced by different judges.
What we find in the results of this natural experiment is that the guidelines have significantly reduced overall inter-judge disparity in sentences imposed, much as the parole guidelines reduced disparity in time actually served prior to implementation of the sentencing guidelines. Together with the other research reviewed below, these findings suggest that the sentencing guidelines have had modest but meaningful success at reducing unwarranted disparity among judges in the sentences imposed on similar crimes and offenders.
The success, however, is uneven. Some types of cases show no improvement, or show improvement in some cities but not in others. Further, there is evidence that some regional sentencing differences have increased under the guidelines, particularly in drug trafficking cases. These results demonstrate the need for further exploration of the sources of these remaining disparities, and of what additional changes are needed to make fair and uniform sentencing attainable for all types of cases in all places.
B. DEFINING AND MEASURING UNWARRANTED DISPARITY
To evaluate the guideline's success at reducing disparity we first must define the problem. A truism of sentencing research is that sentences should vary according to the seriousness of the crime and the dangerousness of the offender, but that "unwarranted disparity" is undesirable and unfair. …