Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC’s 2010 Report
Criminology and Public Policy, Vol. 10, No 4, 2010
68 Pages Posted: 12 Sep 2010 Last revised: 9 Oct 2011
Date Written: January 5, 2011
The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that racial disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in U.S. v. Booker (2005) and U.S. v. Gall (2007). In light of this USSC report, we provide an alternative set of analyses which we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes. We first attempt to replicate the USSC’s models. Then we present alternative models of sentencing outcomes across three time periods spanning FY 2000 to 2009. We find that post-Booker/Gall race/ethnic/gender disparity in sentence length is generally comparable to pre-2003 levels. Our findings mainly diverge from the USSC’s because of: 1) the USSC’s decision to include non-incarceration cases in the sentence length analysis (as sentence lengths of 0), since more racial disparity appears to be manifest in the incarceration decision than in sentence lengths, and 2) the inclusion of immigration offenses in the USSC’s analyses, since comparatively greater disparity affecting black males is observed among immigration offenses. We also extend the USSC report by: 1) presenting analyses that compare post-Booker sentence length disparity with disparity before the 1996 US. V. Koon decision, and 2) presenting an analysis of disparity in departures/deviations from the Guidelines.
Keywords: Sentencing disparity, judicial discretion, federal courts, U.S. v. Booker decision
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