Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence

Abstract

We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory predicts that the policy preferences of the sentencing judge matter in sentencing, that sentencing judges consider the policy preferences of the overseeing circuit court when making their own sentencing decisions, and that sentencing judges manipulate the underlying sentencing instruments associated with the United States Sentencing Guidelines - fact-oriented "adjustments" to a defendant's offense level, and law-oriented "departures" from the Sentencing Guidelines - to achieve their preferred outcomes subject to the constraint of circuit court review. Because a sentencing judge's use of adjustments is reviewed with great deference by appellate courts, sentencing judges use them to maximize their preferences without regard to the preferences of the overseeing circuit court. Departures, by contrast, are reviewed with greater scrutiny by the circuit courts and their use is dependent in part upon the amount of policy preference alignment between the sentencing judge and the circuit court - the greater the alignment of generalized sentencing preferences between the two courts, the more use of departures by the sentencing judges. The empirical test of our theory finds that, as predicted: (1) judges' policy preferences (measured by political ideology) matter in sentencing - liberal judges give different sentences than conservative judges for certain categories of crime; (2) the length of sentence given by sentencing judges depends in part on the amount of political-ideological alignment between the sentencing judge and the circuit court; and, (3) the use of law-oriented departures to determine sentence length is influenced by the degree of political alignment between the sentencing judge and the overseeing circuit court, while the use of fact-oriented adjustments is not so influenced.

Keywords: Law and positive political theory, judges, judicial hierarchy, law and politics, criminal sentencing, sentencing guidelines