The Stability of Case Processing and Sentencing Post-Booker
Journal of Gender, Race, and Justice, Forthcoming
42 Pages Posted: 30 Mar 2010 Last revised: 13 Sep 2010
Date Written: September 10, 2010
In January of 2005, 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 uncertainty regarding how Booker may change sentencing practices has been a major discussion among legal scholars. The wake of Booker/Fanfan may bring decreased uniformity and consistency in sentencing between District Courts, and also increased unwarranted disparity based on the social status characteristics of defendants. This is one of the first empirical studies to examine if and how Booker has changed federal sentencing. We first review the Booker/Fanfan decision and its importance and aftermath, and then review what is known from previous studies of disparity in federal sentencing pre-Booker/Fanfan. Using survey data taken from judges, lawyers, and probation officers in federal courts, we examine how practices in courts may have changed post-Booker. We then examine several of the central questions surrounding whether Booker has increased disparity using USSC data on federal sentencing outcomes from three time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, and the post-Booker/Fanfan period (2006-2007). The results from the survey data show that while some sentencing practices have changed slightly, Booker has not dramatically altered them. And from the USSC data we find that while federal judges in general sentence more leniently post-Booker, extralegal disparity and interdistrict variation in the effects of extralegal factors on sentencing have not increased post-Booker. Thus, allowing judges greater freedom to exercise discretion does not necessarily result in increased extralegal disparity.
Keywords: federal sentencing, Booker/Fanfan, judicial discretion, disparity
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