Posted: 17 Apr 2013
Date Written: April 10, 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
Suggested Citation: Suggested Citation
Hofer, Paul Jeffrey, The Commission Defends an Ailing Hypothesis: Does Judicial Discretion Increase Demographic Disparity? (April 10, 2013). Federal Sentencing Reporter, Vol. 25, No. 4, 2013. Available at SSRN: https://ssrn.com/abstract=2252159