Disparity: The Normative and Empirical Failure of the Federal Guidelines

By Alschuler, Albert W. | Stanford Law Review, October 2005 | Go to article overview

Disparity: The Normative and Empirical Failure of the Federal Guidelines


Alschuler, Albert W., Stanford Law Review


INTRODUCTION
I. THE NORMATIVE NATURE OF DISPARITY
II. THE DISPARITIES THAT THE GUIDELINES CREATE
III. THE DISPARITIES THAT THE GUIDELINES WERE INTENDED TO
     CORRECT
     A. Judicial Variation
     B. Geographic Variation
     C. Race, Ethnicity, and Gender
IV. UNDER THE RADAR: THE SOURCES OF DISPARITY
     A. Judges
     B. Defense Attorneys
     C. Probation Officers
     D. Law Enforcement Officers
     E. Prosecutors
CONCLUSION

INTRODUCTION

When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it. Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper. The luck of the judicial draw appears to determine the sentences offenders serve as much as or more than it did before the Guidelines; the region of the country in which an offender is sentenced now makes a greater difference than it did before the Guidelines; and racial and gender disparities have increased.

Part I of this Article emphasizes that sentencing disparity is a partly normative rather than an entirely empirical concept. It shows how the U.S. Sentencing Commission's initial evaluation of the Guidelines neglected this fact, proclaiming the Guidelines a success simply because judges in the post-Guidelines period came closer to following them than judges did before there were guidelines to apply.

Part II considers the disparities created by the Guidelines. Guidelines principles that appear plausible in some situations may prove nonsensical in others. Moreover, the penalties set by the Sentencing Commission frequently fail to follow a coherent pattern. (1)

Part III focuses on the kinds of disparities the Guidelines were designed to prevent--those resulting from the identity of the sentencing judge, the region of the country in which an offender is sentenced, and the offender's race, ethnicity, or gender. It examines the empirical evidence bearing on these questions, particularly that generated by the Sentencing Commission and its staff. As the Commission's studies show, geographic disparity, the unequal treatment of racial and ethnic groups, and disparities between the sentences of women and men have increased in the Guidelines era. The Commission maintains that the amount of disparity attributable to the identity of the sentencing judge has declined, but this claim is unconvincing. Although the Commission's figures show a small reduction of judge-created disparity in the sentences initially imposed, they indicate no reduction of disparity in the sentences offenders ultimately serve.

Prior to the Guidelines, the United States Parole Commission, an agency with guidelines of its own, determined the release dates of prisoners sentenced by judges throughout America. If this Commission succeeded in reducing interjudge disparity even moderately, it almost certainly achieved greater success than that now claimed for the Federal Sentencing Guidelines. (2) The Guidelines appear to have failed at every job they were designed to do.

Although the Guidelines' failure can be seen in the Commission's statistics, these statistics do no more than skim the surface of the inequalities the Guidelines permit and encourage. Judge-created disparities, for example, are less likely to appear as visible departures from the Guidelines or as differing sentences within authorized Guidelines ranges than as differing applications of Guidelines provisions. Researchers do not treat judicial disagreement about the factual and legal questions and the issues of characterization that arise in Guidelines application as "sentencing disparity." Moreover, the Guidelines have vastly increased the sentencing power of prosecutors while reducing the ability of judges to check this power. The final Part of this Article focuses on sentencing disparities that statistical analysis is unlikely to detect or measure--disparities "under the radar" produced by judges, defense attorneys, probation officers, law enforcement officers, and prosecutors. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Disparity: The Normative and Empirical Failure of the Federal Guidelines
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.