Judicial Attributes and Sentencing-Deviation Cases: Do Sex, Race, and Politics Matter?*

Article excerpt

Most scholars focus on whether the U.S. Sentencing Guidelines effectively constrain judges or result in disparate decisions based on a court's or defendant's location. With few exceptions, studies of the effect of judicial attributes on federal-district-court-sentencing cases have been stymied by the United States Sentencing Commission's refusal to release judges' names in their databases of sentencing facts and decisions. We test the effect of a range of judicial attributes on sentencing decisions using a database where judges must consider requests to depart from the Guidelines and the identity of judges is clearly discernible, and we analyze the effect of the landmark case U.S. v. Booker (2005). These unique data shed light on a neglected area of research, namely, whether judicial attributes traditionally analyzed by scholars affect sentencing-deviation decisions in federal district courts. The results show that judges appointed by Democratic presidents and those deciding cases after Booker tend to favor defendants more than those appointed by Republican presidents and those deciding the cases before Booker. However, female judges, especially when appointed by Republican presidents, are less likely to favor defendants.

The scholarly literature on the effect of the United States Sentencing Guidelines is extensive. Since their inception, scholars have examined the effectiveness of the Guideline system and whether it effectively eliminated disparity in sentencing as intended by the U.S. Congress (Tiede, 2009a). Besides the scholarly literature, the United States Sentencing Commission (USSC), under congressional mandate, has collected and analyzed data on sentencing cases since the Guidelines were applied in 1989. While the USSC data are comprehensive, the data do not include the names of district court judges with their decisions. As a result, the data have limited utility to judicial scholars who seek to understand sources of sentencing disparity based on judicial attributes under the Guideline system.

In this article we make the first attempt to study the effect of a wide range of judicial attributes on federal sentencing decisions at a nationwide level by analyzing an original data set of sentencing deviation cases by U.S. federal district court judges appearing in the Federal Supplement. Sentencing-deviation cases are those cases where district court judges consider whether to depart from the Guideline ranges at the request of the parties or on the judges' own initiative. Decisions concerning departures necessitate the use of the district court judges' broadest discretion under the Sentencing Guideline system. This is because judges must decide whether the case before them is so unusual as to warrant a departure from the statutory guideline ranges. Cases within the Guidelines that do not implicate a request to depart are not generally appealable and, therefore, district court judges rarely request publication of these decisions.

The research here provides a significant contribution to research on sentencing because the use of discretion exercised by district court judges under the federal Guidelines, as well as the remaining disparity in decisions due to the exercise of discretion, has remained puzzling. While the Guidelines until recently were thought to be extremely restrictive as compared to guidelines in other countries, it is unclear why disparity continues to exist. While several studies document the existence of disparity at both the individual and district level, the explanations have remained largely conjectural due to the lack of data on judges in the USSC's own sentencing databases. In this article, we provide preliminary explanations for why disparity may exist in sentencing cases by focusing on the background of judges deciding these cases. In this way, we test how and in what way judicial attributes affect sentencing.

DISPARITY IN FEDERAL SENTENCING

Congress and legal practitioners pressed for the enactment of Sentencing Guidelines because there appeared to be too much sentencing disparity of similarly situated defendants across the nation. …