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
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. …