EQUALITY IN SENTENCING MITIGATION

Abstract

As guilty-plea rates have skyrocketed, sentencing has become an increasingly important part of criminal procedure. With judges often wielding significant discretion at sentencing, a key question is how judges interpret mitigation: evidence about the defendant’s background or the case that supports a reduced sentence. Past empirical research—both experimental and in real-world cases—indicates that mitigation plays an important role in determining sentences. But does mitigation help everyone, or does it reinforce inequalities that frequently infect other areas of criminal procedure? Do low-income Black defendants with appointed counsel benefit from sentencing mitigation as much as wealthier white defendants with private attorneys? Do certain kinds of judges disregard mitigation, leading to longer sentences for those defendants unlucky enough to be assigned to their dockets?

 

In this Article, I present new data that shed light on these questions for the first time. I do this by leveraging two unique datasets. First, by systematically examining over 350 federal sentencing memoranda and coding them for the length of arguments devoted to various categories of mitigation (such as arguments about defendants’ good character, traumatic upbringing, or history of mental or physical illness), I demonstrate that sentencing mitigation is a central predictor of sentencing outcomes. Second, by combining my hand-coded mitigation data with previously unexplored data from the U.S. Sentencing Commission, I am able to assess the extent to which demographic characteristics—such as race, politics, and legal representation—interact with sentencing mitigation.

 

The results are encouraging. For the most part, I do not find evidence that race or politics have a substantial impact on the effectiveness of mitigation. In that way, mitigation may function as a sort of rising tide that lifts all boats, aiding defendants regardless of characteristics that may result in inequality in other parts of criminal procedure. And mitigation’s impact is substantial: an additional 1,000 words of mitigation about a defendant’s personal circumstances predicts an approximately 13% reduction in sentence. At the same time, mitigation is not a panacea: I find that defendants still face a large luck-of-the-draw element as individual attorneys vary strongly in the effectiveness of their presentations. Normatively, I argue that we should encourage more effective presentation of mitigation by streamlining rules about how judges may consider it, by increasing access for detained defendants, and by increasing support for attorneys who need help in presenting it.