The Impact of the Federal Sentencing Guidelines and Reform: A Comparative Analysis*

Article excerpt

In this article, application of the United States Sentencing Guidelines among district court judges adjudicating substantially similar drug cases is compared. When district court judges use the Guidelines, either applying ranges from the sentencing table or explicitly departing from them, average sentences and sentence variation among the circuits analyzed are very similar. However, rates of departure from the Guidelines by district court judges in some circuits vary significantly. Further, district court judges in the circuits analyzed reacted differently than judges nationwide to three significant legal events: the PROTECT Act (2003) (limiting judicial discretion), Blakely v. Washington (2004), and United States v. Booker (2005) (expanding judicial discretion). This analysis suggests that long-existing federal Sentencing Guideline schemes, whether mandatory or advisory, reduce disparities in sentences when judges apply the Guideline ranges, but not disparities associated with the choice of whether to apply those ranges.

By establishing federal Sentencing Guidelines as part of the Sentencing Reform Act (SRA) of 1984 (Title II of the Comprehensive Control Act of 1984), Congress limited judges' sentencing discretion in an attempt to reduce the disparity of sentences across regions for similarly situated defendants convicted of the same crime.1 Subsequent reforms in the form of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub. L. No. 10821 (the PROTECT Act) further reduced judges' sentencing discretion until the U.S. Supreme Court found that the Guidelines were unconstitutional in United States v. Booker (2005) . In this article, application of the Guidelines and of the reform of these Guidelines by district court judges in select circuits is compared to ascertain whether limiting sentencing discretion reduces disparity of case outcomes.

DISPARITY AMONG JUDGES

In the federal sentencing arena, the United States Sentencing Commission (USSC), as well as several scholars, found that the Sentencing Guidelines reduced sentencing disparity as compared with pre-guideline sentencing2 (USSC, 1991, 2004b:95-97; Karle and Sager, 1991; GAO 1991; Anderson, Kling, and Stith, 1999; Waldfogel, 1991, 1998). Although acknowledging that disparity had been reduced with the introduction of the Guidelines, many have written how disparity persisted even under the federal Guideline regime (e.g., Miller, 2002; Heaney, 1991; Hofer et al., 1999; Albonetti, 1997; Everett and Wojkiewicz, 2002; Kautt, 2002; Kautt and Spohn, 2002). Despite the differences in these findings, the USSC in its fifteen-year report insisted that findings using the newer approach of hierarchical models (USSC, 2004a: 101 and Appendix D) indicated "relatively minor inter-judge and regional disparity not explained by case differences."

While disparity often is acknowledged to exist, some scholars focus on the source of disparity rather than its magnitude. Many, including the USSC, believe that disparity is due to pre-sentencing differences in prosecutors' charging and pleading practices (USSC, 2004a; Bibas, 2005); the availability of certain types of defense attorneys (Berman, 2002); caseloads (Braniff, 1993); and local case -processing practices (Ulmer, 2005). Still others believe disparity is primarily due to gender, race, and ethnicity (Mustard, 2001; Free, 1997; Pasko, 2002). Finally, disparity often corresponds to region where district court judges are located (USSC, 1995, 1996). This article focuses on regional disparity.

The purpose of this article is to analyze specifically whether there is disparity in how legal constraints, in the form of legislation or higher- court mandates that alter the amount of discretion that judges may exercise, are applied by district court judges. The present study examines one specific crime, matched by case facts, and employs a method similar to that used by the USSC in 1991, but subsequently abandoned. …