Sentencing Disparities

6 British Journal of American Legal Studies 176 (2017)

48 Pages Posted: 6 Apr 2017 Last revised: 6 May 2018

See all articles by Melissa Hamilton

Melissa Hamilton

University of Surrey School of Law

Date Written: April 4, 2017


This Article is concerned with disparities in penalty outcomes. More specifically, the study investigates upward departures in the federal guidelines-based sentencing system. No other research to date has explored upward departures in detail, despite their unique consequences to individuals and their effects on the system. Upward departures obviously lead to lengthier sentences and symbolically represent a dispute with the guidelines advice. Upward departures are discretionary to district judges and thus may lead to disparities in sentencing and exacerbate the problem of mass incarceration in this country.

The Article contextualizes the legal, policy, and practical reasons that render upward departures uniquely important decisions. Two theoretical perspectives suggest why judges may assess that an individual deserves an upward departure (the focal concerns perspective) and why upward departures may be more prevalent in some courts (courtroom communities’ perspective).

The study capitalizes on a more sophisticated methodology than utilized in most criminal justice empirical research. The study presents a multilevel mixed model to test the effects of a host of legal and extralegal explanatory factors on the issuance of upward departures at the case level (called fixed effects) and whether those same factors are significant at the group level — i.e., district courts — to determine the extent of variation across districts (called random effects). The results indicate that many of the legal and extralegal factors are relevant in individual cases (i.e., individual disparities) and indicate significant variations across district courts exist (i.e., regional disparities).

Keywords: Sentencing Disparities, District Courts, Upward Departures, Proportionality, Sentencing Guidelines, Federal Criminal Justice System, Punishment, Prison, Multilevel Modeling, Regression, Empirical Legal Studies, Courtroom Communities, Focal Concerns, Race, Gender, Citizenship, Violence

JEL Classification: K14, K42, C2, K41

Suggested Citation

Hamilton, Melissa, Sentencing Disparities (April 4, 2017). 6 British Journal of American Legal Studies 176 (2017). Available at SSRN:

Melissa Hamilton (Contact Author)

University of Surrey School of Law ( email )

United Kingdom

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