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http://ssrn.com/abstract=1577238
 
 

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The 'Liberation' of Federal Judges' Discretion in the Wake of the Booker/Fanfan Decision: Is There Increased Disparity and Divergence Between Courts?


Jeffery Todd Ulmer


Penn State University

Michael Thomas Light


Pennsylvania State University

John H. Kramer


affiliation not provided to SSRN

January 5, 2011

Justice Quarterly, Forthcoming

Abstract:     
The United States Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the U.S Supreme Court ruled in United States v. Booker and Fanfan that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v U.S. In general, we find that extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker and Gall. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.

Number of Pages in PDF File: 43

Keywords: federal sentencing, Booker/Fanfan, disparity, judicial discretion

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Date posted: March 28, 2010 ; Last revised: January 7, 2011

Suggested Citation

Ulmer, Jeffery Todd and Light, Michael Thomas and Kramer, John H., The 'Liberation' of Federal Judges' Discretion in the Wake of the Booker/Fanfan Decision: Is There Increased Disparity and Divergence Between Courts? (January 5, 2011). Justice Quarterly, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1577238

Contact Information

Jeffery Todd Ulmer (Contact Author)
Penn State University ( email )
Department of Sociology
211 Oswald Tower
University Park, PA 16802
United States
Michael Thomas Light
Pennsylvania State University ( email )
University Park
State College, PA 16802
United States
John H. Kramer
affiliation not provided to SSRN ( email )
Feedback to SSRN


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