Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker

Article excerpt

ARTICLE CONTENTS  INTRODUCTION  I. PROSECUTORS, SENTENCING, AND THE "HYDRAULIC DISCRETION"    THEORY  II. ESTIMATING RACIAL DISPARITY IN SENTENCING: A PROCESS-WIDE    APPROACH       A. Studies Estimating the Extent of Unwarranted Sentencing         Disparities       B. Our Dataset       C. Our Research on Racial Disparities in Charging and Sentencing:         Some Key Findings       D. Interpretations and Limitations           1. Possible Unobserved Offense Differences           2. Possible Differences in Offender Characteristics           3. Possible Sources of Disparity that Our Estimates Leave Out           4. Race, Gender, and Their Interaction  III. THE BOOKER QUESTION: DOES EXPANDING JUDICIAL DISCRETION    INCREASE RACIAL DISPARITY?       A. The Changing Yardstick Problem       B. The Causal Inference Problem       C. Our Method       D. Regression Discontinuity Estimates of Booker's Effects           1. Changes to Charging           2. Changes in Plea-Bargaining           3. Changes in Sentencing Fact-Finding and Sentencing             Outcomes E. Limitations and Causal Inference             Challenges           1. Limitations of the RD Method           2. Blakely and Anticipation of Booker  CONCLUSION 


In the United States, one of every nine black men between the ages of twenty and thirty-four is behind bars, (1) and, in 2003, the Bureau of Justice Statistics projected that one in every three young black men could expect to be incarcerated at some point in his life. (2) These rates far exceed those of any other demographic group--for instance, black males are incarcerated at nearly seven times the rate of white males. (3) The impact of demographically concentrated incarceration rates on offenders, families, and communities is a critical social concern. (4) But why do these gaps exist? Can they be explained by differences in criminal behavior, or by differences in how the criminal justice system treats offenders? If it is the latter, can the process be improved by reforms, such as changes to sentencing law?

These questions are not new. For decades, racial and other "legally unwarranted" disparities in sentencing have been the subject of considerable empirical research, which has in turn helped to shape major policy changes. Most importantly, the U.S. Sentencing Guidelines and their state counterparts were adopted with the goal of reducing such disparities. In 2005, when the Supreme Court's decision in United States v. Booker rendered the formerly mandatory Guidelines merely advisory, Justice Stevens's dissent predicted that "[t]he result is certain to be a return to the same type of sentencing disparities Congress sought to eliminate in 1984." (5) Whether this prediction was accurate is perhaps the foremost empirical question in sentencing policy today. The most prominent study to date, a 20l0 report of the U.S. Sentencing Commission, gave an alarming answer: Booker and its judicial progeny had quadrupled the black-white sentencing gap among otherwise-similar cases, from 5.5% to 23.3%. (6) In January 2013, the Commission issued an update with similar figures (revising the latter figure slightly downward, to 19.5%), this time combined with explicit calls for legislation in effect returning the Guidelines to something fairly dose to their prior binding status. (7)

This Article introduces a new empirical approach and gives a very different answer. The Commission's methods are hobbled by two serious limitations that also pervade the broader empirical literature on sentencing disparity. (8) First, these studies consider the judge's final sentencing derision in isolation, ignoring crucial earlier stages of the justice process. Those earlier stages have important sentencing consequences, and yet these studies exclude the portions of the ultimate sentence gap that result from earlier-stage decision, making from their estimates. Second, studies of changes in disparity after legal changes (like Booker) have failed to disentangle the effects of the legal change from surrounding events and background trends. …