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Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing

Published online by Cambridge University Press:  02 April 2024

Shawn D. Bushway  and
Anne Morrison Piehl
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Abstract

Variation in sentencing outcomes represents the actions of a number of members of the criminal justice system. To isolate the part of the variation that is due to the discretion of the judge (or other sentencing agent, such as a prosecutor), one can model the sentencing guidelines themselves. Such a model captures any non-linearity in the sentencing grid. In practice, modeling the guidelines rather than legal factor scores (as is common in the literature) means that more of the variation that race and legal factors share in common will be attributed to the racial status of the offender. Using data from Maryland, we find that African Americans have 20% longer sentences than whites, on average, holding constant age, gender, and recommended sentence length from the guidelines. We find more judicial discretion and greater racial disparity than is generally found in the literature. Moreover, when we begin to try to explain this discretion, we find that judges tended to give longer sentences (relative to those recommended by the guidelines) to people in the part of the guidelines grid with longer recommended sentences (who are disproportionately African American) than they gave to people in the part of the grid with lower recommended sentences.

Type
Papers of General Interest
Information
Law & Society Review , Volume 35 , Issue 4 , 2001 , pp. 733 - 764
Copyright
Copyright © 2001 Law and Society Association.

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Footnotes

The authors contributed equally to this article.

We would like to thank Robert Brame, Gary LaFree, Raymond Paternoster, Charles Wellford, Joseph Sanders and the anonymous reviewers, as well as seminar participants at the University of Maryland for helpful comments. We appreciate the excellent research assistance provided by Andrea Cann. We would also like to say a special thank you to Claire Souryal for help with data above and beyond the call of duty. All errors remain our own.

References

Administrative Office of the Courts (1993) Review of the Maryland Sentencing Guidelines: Concepts and 1987 Revisions. Annapolis, MD.Google Scholar
Albonetti, Celesta A. (1991) “An Integration of Theories to Explain Judicial Discretion,” 38 Social Problems 247–66.CrossRefGoogle Scholar
Albonetti, Celesta A. (1997) “Sentencing under the Federal Sentencing Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses, 1991–1992,” 31 Law & Society Rev. 789–824.CrossRefGoogle Scholar
Albonetti, Celesta A. (1998) “The Role of Gender and Departures in the Sentencing of Defendants Convicted of a White-Collar Offense under the Federal Sentencing Guidelines,” 1 Sociology of Crime, Law, & Deviance 3–48.Google Scholar
Amemiya, Takeshi (1985) Advanced Econometrics. Cambridge: Harvard Univ. Press.Google Scholar
Chiricos, Theodore G., & Crawford, Charles (1995) “Race and Imprisonment: A Contextual Assessment of the Evidence,” in Hawkins, D., ed. Ethnicity, Race and Crime. Albany: State Univ. of New York Press.Google Scholar
Dixon, Jo (1995) “The Organizational Context of Criminal Sentencing,” 100 American J. of Sociology 1157–98.CrossRefGoogle Scholar
Engen, Rodney L., & Gainey, Randy R. (2000a) “Modeling the Effects of Legally Relevant and Extralegal Factors under Sentencing Guidelines: The Rules Have Changed,” 38 Criminology 1207–29.CrossRefGoogle Scholar
Engen, Rodney L., & Gainey, Randy R. (2000b) “Conceptualizing Legally Relevant Factors under Guidelines: A Reply to Ulmer,” 38 Criminology 1245–52.CrossRefGoogle Scholar
Griswold, David B. (1987) “Deviation from Sentencing Guidelines: The Issue of Unwarranted Disparity,” 15 J. of Criminal Justice 317–29.CrossRefGoogle Scholar
Johnston, Jack, & DiNardo, John (1997) Econometric Methods, 4th Ed. New York: McGraw Hill.Google Scholar
Kessler, Daniel P., & Piehl, Anne Morrison (1998) “The Role of Discretion in the Criminal Justice System,” 14 J. of Law, Economics, & Organization 256–76.CrossRefGoogle Scholar
Kleck, Gary (1981) “Racial Discrimination in Sentencing: A Critical Evaluation of the Evidence with Additional Evidence on the Death Penalty,” 43 American Sociological Rev. 783–805.CrossRefGoogle Scholar
Klepper, Steven, Nagin, Daniel, & Tierney, Luke-Jon (1983) “Discrimination in the Criminal Justice System: A Critical Appraisal of the Literature,” in Blumstein, A., Cohen, J., Martin, S. E., & Tonry, Michael H., eds. Research on Sentencing: The Search for Reform, Vol. 2. Washington, DC: National Academy Press.Google Scholar
Kramer, John, & Steffensmeier, Darrell (1993) “Race and Imprisonment Decisions,” 34 Sociological Q. 357–76.CrossRefGoogle Scholar
Kramer, John, & Ulmer, Jeffrey J. (1996) “Sentencing Disparity and Departure from the Guidelines,” 13 Justice Q. 81–106.CrossRefGoogle Scholar
Langan, Patrick A. (1996) “Sentence Reductions for Drug Traffickers for Assisting Federal Prosecutors,” unpublished manuscript (U.S. Department of Justice).Google Scholar
Levin, Marshall A. (1984) “Maryland's Sentencing Guidelines—A System by and forjudges,” 68 Judicature 173–80.Google Scholar
Maxfield, Linda, & Kramer, John (1998) Substantial Assistance: An Empirical Yardstick Gauging Equity in Current Federal Policy and Practice. Washington, DC: U.S. Sentencing Commission.Google Scholar
Miethe, Terence D., & Moore, Charles A. (1985) “Socioeconomic Disparities under Determinate Sentencing Systems: A Comparison of Preguideline and Postguideline Practices in Minnesota,” 23 Criminology 337–63.CrossRefGoogle Scholar
Miethe, Terence D., & Moore, Charles A. (1986) “Racial Differences in Criminal Processing: The Consequences of Model Selection on Conclusions about Differential Treatment,” 27 Sociological Q. 217–37.CrossRefGoogle Scholar
Mustard, David B. (2001) “Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts,” 44 J. of Law & Economics 285–314.CrossRefGoogle Scholar
Myers, Martha A., & Talarico, Susette M. (1987) The Social Contexts of Criminal Sentencing. New York: Springer-Verlag.CrossRefGoogle Scholar
Peterson, Ruth D., & Hagan, John (1984) “Changing Conceptions of Race: Towards an Account of Anomalous Findings of Sentencing Research,” 49 American Sociological Rev. 56–70.CrossRefGoogle Scholar
Reitz, Kevin R. (1998) “Modeling Discretion in American Sentencing Systems,” 20 Law & Policy 390–428.Google Scholar
Rhodes, William (1991) “Federal Criminal Sentencing: Some Measurement Issues with Application to Pre-guideline Sentencing Disparity,” 81 J. of Criminal Law & Criminology 1002–33.CrossRefGoogle Scholar
Sampson, Robert J., & Lauritsen, Janet L. (1997) “Racial and Ethnic Disparities in Crime and Criminal Justice in the United States,” in Tonry, M., ed. Ethnicity, Crime and Immigration (vol. 21 of Crime and Justice). Chicago: Univ. of Chicago Press.Google Scholar
Savelsberg, Joachim J. (1992) “Law That Does Not Fit Society: Sentencing Guidelines as a Neoclassical Reaction to the Dilemmas of Substantivized Law,” 97 American J. of Sociology 1346–81.CrossRefGoogle Scholar
Souryal, Claire, & Wellford, Charles (1997) An Examination of Unwarranted Sentencing Disparity under Maryland's Voluntary Sentencing Guidelines. (November 21) www.gov.state.md.us/sentencing/reports/disparity.html.Google Scholar
Spohn, Cassia C. (2000) “Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process,” in Policies, Processes, and Decisions of the Criminal Justice System, Vol. 3. Washington, DC: Department of Justice.Google Scholar
Steffensmeier, Darrell, & Demuth, Stephen (2000) “Ethnicity and Sentencing Outcomes in U.S. Federal Courts: Who Is Punished More Harshly—White, Black, White-Hispanic, or Black-Hispanic Defendants?” 65 American Sociological Rev. 705–29.CrossRefGoogle Scholar
Steffensmeier, Darrell, & Demuth, Stephen (2001) “Ethnicity and Judges' Sentencing Decisions: Hispanic-Black-White Comparisons,” 39 Criminology 145–78.CrossRefGoogle Scholar
Steffensmeier, Darrell, Kramer, John, & Streifel, Cathy (1993) “Gender and Imprisonment Decisions,” 31 Criminology 411–46.CrossRefGoogle Scholar
Steffensmeier, Darrell, Ulmer, Jeffrey, & Kramer, John (1998) “The Interaction of Race, Gender, and Age in Criminal Sentencing: The Punishment Cost of Being Young, Black, and Male,” 36 Criminology 763–98.CrossRefGoogle Scholar
Stolzenberg, Lisa, & D'Alessio, Stewart (1994) “Sentencing and Unwarranted Disparity: An Empirical Assessment of the Long-term Impact of Sentencing Guidelines in Minnesota,” 32 Criminology 301–10.CrossRefGoogle Scholar
Tobin, J. (1958) “Estimation of Relationships for Limited Dependent Variables,” 26 Econometrica 24–36.CrossRefGoogle Scholar
Tonry, Michael (1996) Sentencing Matters. New York, NY: Oxford Univ. Press.Google Scholar
Ulmer, Jeffrey T. (1997) Social Worlds of Sentencing: Court Communities under Sentencing Guidelines. Albany: State Univ. of New York Press.Google Scholar
Ulmer, Jeffrey T. (2000) “The Rules Have Changed—So Proceed with Caution: A Comment on Engen and Gainey's Method for Modeling Sentencing Outcomes under Guidelines,” 38 Criminology 1231–43.CrossRefGoogle Scholar
U.S. Department of Justice (2000) Prisoners in 1999. NCJ 183476. Washington, DC: Bureau of Justice Statistics.Google Scholar
U.S. Sentencing Commission (1995) Substantial Assistance Departures in the United States Courts. Draft Final Report. Washington, DC.Google Scholar
Wheeler, Stanton, Weisburd, David, & Bode, Nancy (1982) “Sentencing the White-Collar Offender: Rhetoric and Reality,” 47 American Sociological Rev. 641–59.CrossRefGoogle Scholar
Wilbanks, William (1987) The Myth of a Racist Criminal Justice System. Monterey, CA: Brookes/Cole.Google Scholar
Zatz, Marjorie S. (1987) “The Changing Forms of Racial/Ethnic Biases in Sentencing,” 24 J. of Research in Crime & Delinquency 69–92.CrossRefGoogle Scholar