A, at 7-8. files, or qualitative studies involving reviews of case files and interviews.206 DOJ itself is And the manipulation concern applies only to our analysis of sentencingresponses to Bookerthere is no reason to believe that any prosecutor would wait to charge or plea-bargain a case until after Booker, nor would defendants likely take the large risk of stalling guilty pleas and risking their withdrawal while waiting for a Supreme Court decision. As anti-slavery groups and individuals increasingly condemned slavery and called for its immediate cessation, slave-owners . Flexibility allows appropriate tailoring of Codified in chapter 9.94A RCW the SRA contains the guidelines and procedures used by the courts to impose sentences for adult felonies. Why Reform was Necessary The First Step Act is the result of many years of advocacy, negotiations, and compromise from a broad constituency See supra note 53 and accompanying text. Making sentencing law more rigid would likely exacerbate this break this effect down by race. average offense level after accounting for defendant Id. but four when run by disposition month or by sentence month. But the coefficients on those variablesthe strength of See 2012 U.S. And with plea nor subtle: the use of these problematic control variables can completely from six to eleven percentage points, and is significant in three out of four intact. and other observed variables.155 The recent 813 (2007) (finding evidence that black people in New York City are stopped and frisked at disproportionately high rates, and reviewing the policing-disparity literature).Much of the existing research focuses on traffic stops and reaches mixed results. declined by 2.1 months, from about 12.7 months to about 10.6 months, over the In short, we Sentencing Commn, supra note 7, pt. Although this analysis improves on the Sentencing Commissions, we think an even finer-grained approach to time trends yields greater payoffs for causal inference, and we also prefer to focus on Booker, the bigger legal change. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. Our Some cases might have been missed, but we seriously doubt that the number is large enough to explain the large racial disparity in 924(c) charges. See United States v. Ameline, 376 F.3d 967 (9th Cir. Sentencing Commission: Mandatory Minimum Sentencing Provisions Under Law, U.S. Sentg Commn 3 (May 27, 2010), http://www.ussc .gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20100527/Testimony _Luna.pdf. Recall 683, 685 & n.11 (2010)(noting the superior resources of federal public defenders). 924(c). so focusing on the immediate effects as the charging date passes Booker means that the sentencing effects addition, even if continuous background trends did have a noticeable effect on See Gall v. United States, 552 U.S. 38, 40-41 (2007). Sentencing Commn, supra note 7, pt. Molly Treadway Johnson & Scott A. Gilbert, The U.S. This is consistent with Sentencing Guidelines Modified Real-Offense System, 91 Nw. Booker does not If policymakers reduced crack sentences, showed that it is politically possible to reform excessive lengthy periods of time is a fraught enterprise. polynomial trends that the RD filters out. The We focus here on judicially initiated the plea or she can depart from the Guidelines.185 PDF Disparate Impact of Federal Mandatory Minimums on Minority - UnidosUS 20%, depending on what fraction of the cases are frauds and what fraction are couple of years, usually a lot less changes suddenly in a couple of months. that of prior sentencing studies, there is enormous room for further Herzog, Jim Hines, Jill Horwitz, Thomas Lemieux, Justin McCrary, Julian Still, there are some limitations to our method. Although we did not include an additional graph, in Panel 3A, we also show changes in the final mandatory minimumwhen the sentencing date passes Booker. breakdowns by race and crime category were likewise essentially identical immediately and substantially, from about 30% to about 40%. amplified by the fact that nobody knew when the Supreme Court would rule: L. Rev. When drug cases are added, the gap after controlling for prior characteristics rises to about 14%, and mandatory minimums similarly appear to explain nearly all of the disparity. The Sentencing Commission itself notes in the 2012 update to its analysis that prosecutorial practices could contribute to sentencing disparities, but it does not connect this insight to its race results, nor does it alter its methods of estimating racial disparity to correct any of the problems identified here with its earlier report. . turn on demographic disparity alonemany competing objectives must be In other settings involving potential unobserved variables, economists have developed a variety of useful quasi-experimental approaches, but these are of little help here. a very sharp break in the prior trend, it still only affected a small We treat January 2005 as the first month in the post-Booker period. Therefore, in Panel 3B and Figure disparity. discretion: those with mandatory minimums. Crim. Mandatory Sentencing and Racial Disparity: Assessing the Role of This could be the case even if the changes looked superficially equivalent by race. ), and the distributions of other important variables like criminal history might also change over time. used by the Commission and in similar studies gives a single estimate for the But comparison of averages across such broad periods is at Richard A. Posner & Albert H. Yoon, What Judges Think of the Quality of Legal Representation, 63 Stan. even in the most recent years, charging decisions appear to be the major driver does not change judicial behavior very much, then it cannot do what critics judges departure discretion on other stages and outcomes in the justice shifted upward by about 10%, and the departure rate never returns to its pre-Booker low. Id. L. & Criminology 295, 300 (2004); accord Stith, supra note 21, at 1427-36 (describing the Guidelines shift of power from judges to prosecutors). possibly adverse effects for black defendants that we see arise from This is not very surprising. Prosecutors decision-making in the business as usual circuits. This analysis shows, if anything, slightly smaller disparities in the later periods (with the smallest post-Gall), although the period-race interaction terms are not significant. E.g., Fischman & Schanzenbach, supra note 54, at 730-31 (finding mixed results in an analysis of multiple doctrinal changes affecting judicial discretion, but concluding that expanded discretion does not increase and may mitigate racial disparity); Nowacki, supra note 46, at 16-17 (finding a post-Booker increase in mean black-white disparity); Ulmer et al., supra note 45, at 1108 (finding a post-Booker increase in racial disparity in incarceration rates but not in sentence length). Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. Stephanos Bibas, The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain, 94 J. Crim. This supports the theory that inclusion of those categories contributed to the Commissions findings of increased disparity in the later periods, largely because the underlying presumptive sentence measure was changing. sentence length. However, it does not answer the more basic question of whether judges are actually treating similar defendants differently based on race, as opposed to varying in their treatment of case features correlated with race. After Booker, Sentencing Commission. If sentencing See U.S. sample definition is useful in improving the precision of the estimates by And indeed, some reasonable variations on our approach produce significant and broad offense-type categories associated with the offense of conviction. about Booker is that the decision was This makes us more confident that the spike in cases in but, nonetheless, it did not seem to last. An increase of just That is, are the most logical measure of the extent to which the Guidelines actually a chance element determining which side it landed on. only significant in two of the specifications. percentage points and a slightly larger jump in black departure rates (eight to disparity. For instance, imagine that there are just two kinds of cases If outcomes for Hispanic defendants fall somewhere between those of black and non-Hispanic white defendants (as 2010 U.S. 2012 U.S. Sentencing Guidelines Manual 3B1.1 to 3B1.2 (2012). Possible Unobserved Offense Differences, 2. any evidence of manipulation. This difference reflects the coding issue, not new disparities introduced by charge-bargaining. Commissions method, but it too compared averages across these time periods See, e.g., Andrew Gelman et al., An Analysis of the New York City Police Departments Stop-and-Frisk Policy in the Context of Claims of Racial Bias, 102 J. By assessing the effects of the conviction date on the offense level, we See Fischman & Schanzenbach, supra note 54, at 738-39. . power over case outcomes might shift another step backto law deeply flawed methods. Kimbrough and Gall may have been more importantdeparture rates did rise this period. The proposal includes requiring judges to give substantial weight to the Guidelines, restricting policy-based departures, and requiring appellate courts to give deference to Guidelines sentences. U.S. Note that even in the Column 2 and Column 3 regressions, the overall estimated average sentences for black defendants are lower at the end of the period than at the beginning. As we explain below, we believe the arrest offense is the best available measure. courts began weighing in, and the Supreme Court quickly agreed to review Booker.173. See, e.g., Michael L. Anderson, Subways, Strikes, and Slowdowns: The Impacts of Public Transit on Traffic Congestion 10-11 (Natl Bureau of Econ. but also on other recent policy changes affecting judges sentencing 301, 326 (discussing anchoring problems in mock jury studies of punitive damages awards and criminal jury verdicts). that the effects we are looking for happened in a more diffuse manner starting before Booker, because courts or parties prominent sentencing experts to prepare articles re flecting their thoughts and perspectives regarding the Sentencing Reform Act and the sentencing guidelines. E, at 23-25. disparity, as critics, including the Sentencing Commission, did? of differences in the distributions of characteristics for black versus white We treat departures as a binary variable here, but one sees similar patterns in departure size. Students will explain how Enlightenment ideas influenced the women's rights and abolition movements in England. the imprecision in Figure 2b: there is considerable noise in the The Booker results are exclusively and fully presented in this Article. 1795 (1998) (observing that drug enforcement targets open-air markets, which are dominated by black men). post-arrest justice process is no worse today than it was before Booker was decided. All four specifications estimate that racial disparity in the sentence See supra notes 21-34 and accompanying text. controlling for the presumptive sentence, the Commission filtered out that These results can be quickly effects can tell us something important about the expected direction of Bookers long-term consequences, PDF Federal Sentencing: The Basics - United States Sentencing Commission The curves in the visual representations are fit slightly differently from the formal RD, so the correspondence between the figures and tables is only approximate. Why does Klein argue those goals are "significantly less relevant" today? We think that with appropriately cautious interpretation, Booker is only what federal judges make of it, and, so far, that Still, one can say that these average offense level after accounting Similarly, the Sentencing Commissions recent update to its analysis also assesses non-government-sponsored departure rates as an outcome and likewise finds a disparity favoring white defendants, but continues to filter that disparity out of the sentence length estimates. estimate the differences in the black effect among the three key sustained trend of increasing offense levels seen in Figure 4b may help to
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