Do Standards of Review Matter? The Case of Federal Criminal Sentencing

37 Pages Posted: 16 Jul 2009 Last revised: 4 Jul 2012

Date Written: August 11, 2010


We study whether changes to standards of review affect district court sentencing decisions under the United States Sentencing Guidelines. Departures from the Guidelines by district judges have at times been reviewed de novo or less strictly for abuse of discretion. If review standards are constraining, then differences between judges should increase when standards are relaxed. Consistent with prior studies, we find that Democratic appointees are more lenient than Republican appointees; however, this difference significantly increases when review is deferential. We conclude that district judges are meaningfully constrained by the prospect of appellate reversal. However, we also find that judges appointed before the adoption of the Guidelines are more likely to depart from the Guidelines and issue shorter sentences, but that this difference is not significantly affected by the standard of review. We suggest that the constraining effect of appellate review varies with a judge’s respect for the underlying legal regime.

Suggested Citation

Fischman, Joshua B. and Schanzenbach, Max Matthew, Do Standards of Review Matter? The Case of Federal Criminal Sentencing (August 11, 2010). 40 Journal of Legal Studies 405 (2011), Virginia Public Law and Legal Theory Research Paper No. 2010-23, Available at SSRN: or

Joshua B. Fischman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Max Matthew Schanzenbach

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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