The Commission Defends an Ailing Hypothesis: Does Judicial Discretion Increase Demographic Disparity?
Paul Jeffrey Hofer
Sentencing Resource Counsel Project; Department of Psychological and Brain Sciences
April 10, 2013
Federal Sentencing Reporter, Vol. 25, No. 4, 2013
The U.S. Sentencing Commission has argued that increased judicial discretion, resulting from the Supreme Court's decision in U.S. v Booker, has led to increased sentencing disparity, particularly against Black males. This paper shows that the Commission's own findings are not consistent with a pattern of increased disparity arising from increased discretion. Moreover, the Commission's statistical models do not measure the most important sources of demographic disparity: 1) pre-sentencing charging and plea bargaining decisions, and 2) unfair rules having severe adverse impacts. Nor do the models measure the effects of the most significant change resulting from Booker -- an increase in the rate of sentences imposed below the recommended guideline range. Policymakers require a broader range of methods and data, as provided by a new generation of econometric researchers, before reaching conclusions about proposals for legislative change.
Keywords: federal sentencing, sentencing guidelines, Booker, disparity
Date posted: April 17, 2013
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