WORKS COMMONLY CITED
Shawn Bushway and Anne Morrison Piehl, Judging Judicial Discretion:
Legal Factors and Racial Discrimination in Sentencing, Law and
Review 35, 4 (2001): 733-764
John Kramer and Darrell Steffensmeier, Race and Imprisonment
Decisions, Sociological Quarterly 35, 2 (1993): 357-376;
Darrell Steffensmeier and Stephen Demuth, Ethnicity and Sentencing
Outcomes in U.S. Federal Courts: Who is Punished More Harshly?
American Sociological Review 65 (October, 2000): 705-729;
Rodney L. Engen and Randy R. Gainey, Modeling the Effects of Legally
Relevant and Extralegal Factors Under Sentencing Guidelines: The Rules
Have Changed, Criminology 38, 4: 1207-1229;
Rodney L. Engen and Randy R. Gainey, Conceptualizing Legally
Relevant Factors Under Guidelines: A Reply to Ulmer, Criminology 38,
Demuth, Stephen. Forthcoming. "Racial and Ethnic Differences in
Pretrial Release Decisions and Outcomes: A Comparison of Hispanic,
Black, and White Felony Arrestees." Criminology.
Demuth, Stephen. 2002. "The Effect of Citizenship Status on Sentencing
Outcomes in Drug Cases." Federal Sentencing Reporter 14: 1-5.
Steffensmeier, Darrell and Stephen Demuth. 2001. "Ethnicity and
Judges' Sentencing Decisions: Hispanic-Black-White Comparisons."
Criminology 39: 145-178.
Steffensmeier, Darrell and Stephen Demuth. 2000. "Ethnicity and
Sentencing Outcomes in U.S. Federal Courts: Who is Punished More
Harshly?" American Sociological Review 65: 705-729.
Nagel, Ilene. H., Institutional Sexism: The Case in Criminal Courts
(with J. Cardascia and C.
Ross), in DISCRIMINATION IN ORGANIZATIONS. New York: Jossey Bass,
Nagel, Ilene. H., Sex Differences in Court Outcomes for Criminal
Defendants (with J. Cardascia and C. Ross), in WOMEN AND CRIME:
CROPWOOD CONFERENCE SERIES. London: Cambridge University Press, 1981.
Nagel, Ilene. H., Sex Differences in the Processing of Criminal
Defendants (with J. Cardascia
and C. Ross), in WOMEN AND THE LAW: THE SOCIAL HISTORY PERSPECTIVE.
Cambridge, MA: Schenkman Publishing, 1981.
Nagel, Ilene. H., Gender and Crime: Offense Patterns and Criminal
Court Sanctions (with J.
Hagan), in CRIME AND JUSTICE: AN ANNUAL REVIEW OF RESEARCH. Chicago:
University of Chicago Press, 1983.
Nagel, Ilene. H., Criminal Justice Decision Making as a Stratification
Process: The Role of
Race and Stratification Resources in Pretrial Release (with C.
Albonetti, R. Hauser and J. Hagan), 5 JOURNAL OF QUANTITATIVE
CRIMINOLOGY 57 (1989).
Nagel, Ilene. H., Equality v. Discretion in Sentencing, 26 AMERICAN
CRIMINAL LAW REVIEW 1813 (1989).
Nagel, Ilene. H., Negotiated Pleas Under the Federal Sentencing
Guidelines: The First Fifteen Months (with S. Schulhofer), 27 AMERICAN
CRIMINAL LAW REVIEW 231 (1989).
Nagel, Ilene. H., Foreword: Structuring Sentencing Discretion: The New
Federal Sentencing Guidelines, 80 JOURNAL OF CRIMINAL LAW AND
CRIMINOLOGY 883 (1990).
Mustard, David B., Racial, Ethnic and Gender Disparities in
Sentencing: Evidence from the US Federal Courts, The Journal of Law
and Economics, vol. 44, no. 1 (2001): 285-314.
Ulmer, Jeffery T. 2000. "The Rules Have Changed--So Proceed With
Caution: A Comment On Engen and Gaineys Method for Modeling
Sentencing Outcomes Under Guidelines." Criminology 38(4):1231-1243.
Ulmer, Jeffery T. and John H. Kramer. 1998. "The Use and
Transformation of Formal Decision Making Criteria: Sentencing
Guidelines, Organizational Contexts, and Case Processing Strategies."
Social Problems 45(2):248-267.
Steffensmeier, Darrell J., Jeffery T. Ulmer, and John H. Kramer. 1998.
"The Interaction of Race, Gender, and Age in Criminal Sentencing: The
Punishment Costs of Being Young, Black, and Male." Criminology:
Ulmer, Jeffery T. 1997. Social Worlds of Sentencing: Court Communities
Under Sentencing Guidelines. Albany, NY: State University of New York
Ulmer, Jeffery T. and John H. Kramer. 1996. "Court Communities Under
Sentencing Guidelines: Dilemmas of Formal Rationality and Sentencing
Disparity." Criminology 34(3):306-332.
Kramer, John H. and Jeffery T. Ulmer. 1996. "Sentencing Disparity and
Guidelines Departures." Justice Quarterly 13(1):401-426.
Ulmer, Jeffery T. 1995. "The Organization and Consequences of Social
Pasts in Criminal Courts." The Sociological Quarterly 36(3):901-919.
Sentencing Commission Report Finds Disparity in Cocaine Sentencing
"The discrepancy between the federal court penalty for crack cocaine
offenses and powder cocaine offenses is too great, concludes a special
report issued last month by the U.S. Sentencing Commission.
One of the impacts of this discrepancy is that low-level (retail)
crack cocaine dealers potentially can be punished far more severely
than their high-level (wholesale) suppliers of powder cocaine, from
which crack is converted, said the report. In 1993, the mean sentence
for crack possession was 30.6 months and the mean sentence for powder
was 3.2 months. The median sentence for crack was 9.5 months, while
the median sentence for powder was zero, indicating that defendants in
73.8 percent of the powder possession cases received probation with no
prison term, while only 32 percent of the defendants in crack
possession cases received probation."
US SENTENCING COMMISSION
2002 Federal Sentencing Guideline Manual
Reports to Congress
Special Report to the Congress Cocaine and Federal Sentencing Policy -
Special Report to the Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System (1991)
FROM: Paul J. Hofer, Senior Research Associate
DATE: June 1, 1998
REGARDING: Update on Disparity Research
"Two studies appeared in the past year that purport to demonstrate the
influence of bias or racial and gender stereotypes. Albonetti, writing
in the LAW & SOCIETY REVIEW, reported nontrivial effects for both
gender and race. For example, after controlling for offense level, 
criminal history score, and several other factors, women were six
percent less likely than men to be imprisoned and Blacks were three
percent more likely than Whites.
In late April, the Commission received calls from reporters about an
unpublished paper by Professor David Mustard of the University of
Georgia. It concluded that race, ethnic, and  gender-based
disparities are prevalent in federal sentencing and that
legally-relevant factors do not appear to account for all the
differences observed. For example, among non-departure cases, the
average sentence for Blacks was found to be about two months longer at
the mean than the average sentence for Whites.
Kevin and I reviewed a draft of this paper and wrote a response, which
we sent to Professor Mustard and would happily share with anyone else
who is interested. Based on our suggestions, Professor Mustard decided
to redo his analyses for publication at a later date. This study had
one of the same problems as the study published in the Nashville
Tennessean several years ago: it failed to control for the effects of
mandatory minimum statutes that truncate or trump the guideline range.
In a re-analysis of the data used in the Tennessean study, Kevin found
that the mandatory minimums completely accounted for the race effect.
Internal research. Examining the dozen studies of racial and gender
disparity under the federal guidelines (as well as scores of studies
on sentencing in other jurisdictions) we concluded that many of the
same problems are common to most of them. This prompted us to write a
methodological review and critique of research on discrimination,
which we presented at the annual meeting of the American
Criminological Association. The paper received a favorable 5 review
from Dr. William Rhodes of Abt Associates, the discussant for the
panel at the meeting. It was subsequently reviewed by Professor Hagan,
who recommends minor revisions and submission for publication in LAW &
SOCIETY REVIEW or JUSTICE QUARTERLY. (See attachment for Professor
Among the points raised in the paper are:
* Many of the findings in current studies of sentencing disparity
reflect methodological problems and do not demonstrate discrimination
on the part of judges.
* Researchers should not infer discrimination unless they have
controlled for the most important legally-relevant factors that may
account for differences among groups. These factors are specific to
the particular decision being made.
* The most significant reason for differences among average sentences
for Blacks and Whites is not discrimination. It is the effects of
factors that are legally relevant, but that have a disproportionate
impact on Blacks, such as the harsher treatment of crack cocaine.
We believe publication of this paper in a widely-circulated
professional journal will prevent future researchers from making the
same mistakes. It may also help redirect resources toward more
fruitful lines of inquiry."
" 3 Celeste A. Albonetti, Sentencing under the Federal Sentencing
Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and
Departures on Sentence Outcomes for Drug Offenses, 1991-1992," 31 LAW
& SOC REV 789 (1997).
4 David B. Mustard, Racial, Ethnic and Gender Disparities in
Sentencing: Evidence from the US Courts, Revision February 1998.
(Unpublished paper on file with the author.)
5 Paul J. Hofer & Kevin R. Blackwell, Identifying Sources of
Unfairness in Federal Sentencing, presented November 21, 1997, at the
convention of the American Criminological Association. (On file with
AMERICAN CIVIL LIBERTIES UNION (ACLU)
Criminal Justice : Sentencing/Prisons
Criminal Justice : Death Penalty
Death Penalty : Unequal Justice
Analysis of June 6 Justice Department Report of Federal Death Penalty
FACT SHEET: EXECUTION OF JUAN RAUL GARZA
The Justice Department's Federal Death Penalty Report
"In September 2000, the Justice Department released the results of an
internal survey ordered by then Attorney General Janet Reno that
revealed stark racial and regional disparities in the application of
the death penalty in federal cases.
* Of the 20 people on federal death row, 17, or 85%, were minorities
(14 Black; 3 Hispanic; 3 White).
* Between 1995 and 2000, 80 percent of all federal cases submitted for
the death penalty involved minority defendants (20% White; 48% Black;
29% Hispanic; 4% other);
* During that period, defendants were allowed to plead guilty in
exchange for a life sentence in 32% of all cases. Of the total number
of guilty pleas, 40% were White defendants, 25% were Black, 28% were
Hispanic, and 25% were other. In other words, Whites were much more
likely to escape a death sentence through plea bargaining than
* The federal death penalty is geographically arbitrary since the
death penalty is pursued by only a handful of federal prosecutors.
Between 1995-2000, 42% of all federal cases in which a U.S. attorney
requested the death penalty were from only 5 of the 94 federal
districts. Cases prosecuted in the southern states of Texas, Virginia,
Oklahoma, Alabama, Florida, Louisiana and Georgia accounted for 65% of
the total federal death penalty prosecutions.
Upon reviewing the report, President Clinton concluded that "the
examination of possible racial and regional bias should be completed
before the U.S. goes forward with an execution in a case that may
implicate the very questions raised by the Justice Department's
continuing study. In this area there is no room for error."
"Attorney General Ashcroft's Switch
During his confirmation hearings, John Ashcroft agreed that there was
"a need for 'continuing study' of possible racial and regional bias in
the federal death penalty," and said that "a thorough study of the
system" was necessary.
On June 6th, Attorney General Ashcroft did an about face and said that
there was "no evidence of bias against racial or ethnic minorities"
and that he would not authorize further study of the matter. He also
said "I know of no reason not to proceed with the Garza execution.""
Unequal Justice for Minorities
"There is a major source of racial discrimination in our nation's
criminal justice system, the selective prosecution of minorities,
blacks in particular. The time has come for America to admit to the
"dirty little secret" that has contaminated our criminal justice
system. Our system of justice is a racially biased, two-tiered system;
one for blacks and one for whites. Blacks are disproportionately
targeted, stopped, arrested, prosecuted, sentenced to long mandatory
prison terms and executed. In the nearly 30 years since the Kerner
Commission warned us that America was moving toward "two societies,
one black, one white - separate and unequal," our country's criminal
justice system has certainly made it a reality."
"According to a 1994 report from the American Bar Association's
Criminal Justice section, minorities who are arrested are imprisoned
more than non-minority arrestees, and make up more than half of the
state prison population.
The most recent statistics show that blacks are arrested and
incarcerated for drug use at a much higher rate than can be accounted
for by their rate of drug use. Blacks, who comprise only 12% of the
population and 13% of drug users, constitute some 35% of those
arrested for drug possession, 55% of those convicted of possession,
and 74% of those sentenced to prison for possession."
"A study by the Washington, D.C.-based Sentencing Project, which
tracks the demographics of who in our society goes to prison and for
what kinds of crimes, found that black men are going to jail in record
numbers due to a surge in arrests for non-violent drug offenses.
The Sentencing Project also found that in 1993, 88% of those sentenced
federally for crack cocaine distribution were black, while only 4.1%
of the defendants were white. This, while there are studies showing
that a majority of the nation's reported crack cocaine users are
Because of the irrational federal cocaine sentencing guidelines, the
Sentencing Commission recommended amending its guidelines to reflect a
one-to-one ratio at the current levels set for powder cocaine, but,
for the first time in the Commission's history, the Congress and the
President rejected the Sentencing Commission's recommendation and
reinstated the illogical sentencing structure."
The Sentencing Project
Reducing Racial Disparity
"The Sentencing Project has released the first blueprint to reduce
racial disparity in the criminal justice system. The practitioner
manual, Reducing Racial Disparity in the Criminal Justice System was
authored collaboratively by 17 criminal justice experts and
practitioners, including judges, state corrections directors, police
officials, and a prosecutor, among others. It identifies the causes of
racial bias and outlines practical actions and solutions for each
stage of the system, from arrest to incarceration, including police
action, defense, prosecution, judiciary, probation, prisons, and the
Since the report's release, The Sentencing Project's Assistant
Director Marc Mauer and consultant Dennis Schrantz have spoken to a
number of groups and government agencies about strategies for reducing
racial disparity. The team has provided training and technical
assistance, with a major project helping local officials in
Bloomington, Indiana to address racial disparity.
For further information and to receive a copy of the manual, email The
Sentencing Project. email@example.com"
WHERE WOMEN FIT: Gender and the Federal Sentencing Guidelines
By Cassidy Kesler
"B. Literature Overview Since the implementation of the Guidelines, at
least three empirical studies have suggested that gender differentials
in sentencing remain despite the Commissions elimination of sex as a
relevant consideration. In 1994, Ilene Nagel and Barry Johnson
analyzed aggregate statistical data and found that women offenders
disproportionately benefited from areas of discretion under the
Guidelines: downward departure for substantial assistance to the
authorities, downward departure due to atypical facts or
circumstances, and selection of a sentence in the low end of the
sentencing range. In 1995, Phyllis Newton, Jill Glazer and Kevin
Blackwell reported that raw average sentence lengths for men offenders
were significantly longer than for women offenders. And in 2001, after
controlling for offense level, criminal history, district and offense
type, David Mustard found that women offenders received sentences of
5.5 fewer months than men offenders. He calculated that much of this
difference was attributable to departures from therange prescribed by
the Guidelines. When looking just at cases sentenced within range,
Mustard found that the gap between men and women offenders sentences
decreased to 1.8 months.
C. Summary of Findings and Policy Implications In some respects, my
findings support the existing literature. As Nagel and Johnson and
Newton et al. found, women offenders commit primarily non- violent
offenses and hence are less likely to receive full downward
adjustments for acceptance of responsibility. Also consistent with
Newton et al. are my findings that women offenders go to trial less
frequently than men offenders, and are more likely to be assigned the
lowest criminal history category than men. In other important
respects, however, my findings differ from and add to the existing
literature. My analysis suggests that more precise data about
dependents is needed before meaningful conclusions about dependents,
gender and sentencing can be made. In addition, my research suggests
that the criminal history categories set by the Guidelines fail to
reflect the fact that a notable percentage of all offenders, but women
to a greater extent than men, have no criminal record at all. Most
significantly, in contrast to Nagel and Johnsons conclusions, my
findings show that the difference between the percentages of men and
women offenders who receive downward departures from the Guidelines
range has decreased over time. While this paper does not determine
whether gender-based sentencing disparity exists, it does suggest that
gender-related factors such a role-in-the-offense and criminal
history may help explain and possibly justify gender differentials
in sentencing. Just as controlling for immigration offenses helps
explain the different ethnic distributions of men and women offenders,
controlling for other gender-related factors may help account for
perceived disparities, including the gender difference in prison-only
sentences and sentence zone identified in this paper."
Title: Separating and Estimating the Effects of the Federal Sentencing
Guidelines and the Federal Mandatory "Minimums": Isolating the Sources
of Racial Disparity
Author: Paula M. Kautt
"Abstract: The research strategy entailed the partitioning and
analysis of the 1992 U.S. Sentencing Commission's sentencing data,
first by specific offense type and then by specific mandatory minimum
statute. The intent of this design was to determine whether or not
there are differences in the sentences meted out under mandatory
minimum statutes compared to guideline statutes. Findings support the
two hypotheses that the significant predictors of imprisonment will
vary significantly by offense type and specific statute. Findings also
support the hypothesis that defendant race is a significant predictor
of sentence length but not of incarceration in the general offense
model. The hypothesis that race and other extralegal factors would be
stronger predictors of sentence outcomes in mandatory-minimum than in
guideline cases, however, was refuted by the findings. Partial support
was found for the hypothesis that predicted the effect of race would
be greater for mandatory minimum drug offenses than for other
mandatory minimums. Extensive tabular data and 200 references."
Studying Disparity Under the Federal Sentencing Guidelines
Paul J. Hofer, U.S. Sentencing Commission Kevin R. Blackwell, U.S.
"ABSTRACT Researchers from the U.S. Sentencing Commission have
previously reported several methodological problems with existing
studies of disparity under the federal sentencing guidelines. In a
recent issue of Criminology (Vol. 38, No. 4, p. 1207), Engen and
Gainey propose a "presumptive sentence" method for controlling for
legally relevant variables in a multivariate analysis, which can
address some of the problems with the existing research. Commission
staff have re-analyzed federal sentencing data using this approach.
Our results are in several important respects different from the
conclusions in previously published research. These differences have
implications for whether discrimination affects federal sentences, and
for identifying where and how any unfairness arises. This panel brings
together government and academic scholars to discuss how best to study
disparity under the federal guidelines, how to interpret the variation
in results, and how much we can expect to learn by pursuing this and
similar approaches further. The Commission's critique of the existing
research and its re-analysis of federal data using the presumptive
sentence approach will be presented, and panelists will then discuss
the results and have the opportunity to present any alternative
interpretations or to argue for a different approach."
Recent Innovations in Multiple Regression Studies of Federal
Paul J. Hofer, U.S. Sentencing Commission Kevin R. Blackwell, U.S.
"ABSTRACT Empirical investigation of disparity in sentencing has a
long history. It was recognized early on that simple comparisons among
racial or ethnic groups (either in the proportion of each group
receiving prison, or in their average sentence lengths) might not
reveal discrimination but instead reflect differences in the types of
crimes committed or the extent of group members= criminal history.
This led to the use of multivariate techniques, particularly multiple
regression analysis, to control for the variation in sentences that
might be attributed to legally-relevant factors (Hagan 1974).
Multiple regression models of this type have been used for decades to
study discrimination in federal sentencing, including at least 13
studies conducted following the introduction of federal sentencing
guidelines in 1987 (Hofer & Blackwell, 1999). Four of these studies
have appeared in peer-reviewed journals (Albonetti, 1997; Herbert,
1997; Steffensmeier & Demuth, 2000; Mustard, 2001) and several
appeared in the popular press (Frank, 1995; Flaherty & Casey,1996).
These studies have reported that offenders= race and ethnicity
continue to have a significant effect on sentences, even after
controlling for the most important legally relevant factors."
"Other researchers noted additional problems with the standard
multiple regression approach. Mustard (2001) described one problem---a
lack of linearity between offense level, criminal history score, and
sentence lengthCand avoided it by using dummy variables representing
each cell of the sentencing table rather than offense level and
criminal history as linear control variables.
Engen and Gainey (2001), in a study of sentencing under the Washington
State guideline system, refined this approach further by representing
all legally relevant factors with a single independent variable, the
Apresumptive sentence,@ which was defined as the mid-point of the
range of imprisonment recommended by the guidelines applicable to each
case. As predicted, this approach reduced the effects for race,
ethnicity, and gender and in some cases eliminated the effects
CV for David B. Mustard
UNIVERSITY OF GEORGIA ECONOMICS
Mustard, David B.
"Racial, Ethnic and Gender Disparities in Sentencing: Evidence form
[sic] the US Federal Courts"
This paper studies 77,756 federal offenders who were sentenced under
the Sentencing Guidelines and Policy Statement of the Sentencing
Reform Act (SRA) of 1984 and makes the following conclusions. First,
after controlling for the offense level and criminal history, blacks
receive sentences that are six months (13%) longer than whites, and
females receive sentences that are six months less than males. Second,
when socioeconomic and demographic controls are added the black-white
difference decreases to 5.2 months and the female-male difference
increases slightly.[...] Third, most of the disparities are generated
by departures from the guidelines, rather than differential sentencing
within the guidelines. About 60% of the black-white difference and 65%
of the male-female difference is generated through guideline
departures. Fourth, the racial and gender disparities occur on a
number of different margins.[...] The Hispanic-white disparity is
generated primarily by those convicted of drug trafficking and firearm
possession and trafficking. Over 70% of the black-white disparity and
about 82% of the Hispanic-white disparity for drug trafficking is
accounted for by departures in the guidelines.
Request a hard copy from the author.
"Racial, Ethnic and Gender Disparities in Sentencing: Evidence form
[sic] the US Federal Courts"
(Note the extensive bibliography.)
New York University School of Law
Stephen Breyer, The Federal Sentencing Guidelines And The Key
Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1 (1988)
Background reading: Mistretta v. United States, 488 U.S. 361 (1989)
Departures For Reasons Other Than Cooperation Guidelines Manual,
Chapter Five 5, Parts H K Koon v. United States, 518 U.S. 81 (1996)
Departure Statistics, U.S. Sentencing Commission Available at
ussc.gov, (in the Commissions Federal Sentencing Statistics file,
click on 2000 Sourcebook of Federal Sentencing Statistics). Pay
particular attention to Figure G and Tables 24-32, Figure C and Table
10, and to Tables 57 and 58
Plea Bargaining Under The Guidelines Guidelines Manual Chapter 6, Part
B Rule 11, Federal Rules of Criminal Procedure U.S.S.G. § 5K2.21
United States v. Goodall, 236 F.3d 700 (D.C. Cir. 2001) United States
v. Rose, 2001 WL 1402201 (N.D.Tex. Nov. 8, 2001) Stephen J. Schulhofer
and Ilene H. Nagel, Plea Negotiation Under The Federal Sentencing
Guidelines: Guideline Circumvention And Its Dynamic In The
Post-Mistretta Period, 91 Nw. U. L. Rev. 1284 (1997) J. Gleeson,
"Sentence Bargaining Under The Guidelines," 8 Fed. Sent. R. 314 (1996)
Sentencing Severity; Alternative Sanctions; Collateral Consequences
Sentencing Severity United States Sentencing Commission, The
Crack/Cocaine Penalty Ratio: Recommendations to Congress, 7 Fed. Sent.
R. 312 (1995) A. Rappaport, The State of Severity, 12 Fed. Sent. R.
3 (1999) P. Hofer and C. Semisch, Examining Changes in Federal
Sentencing Severity: 1980- 1998), 12 Fed. Sent. Rep. 12 (1998) P.
Rossi and R. Berk, Just Punishments: Federal Guidelines and Public
Views Compared, 12 Fed. Sent. R. 27 (1999) Statement of Kathleen Hawk
Sawyer before the Senate Judiciary Committee, Subcommittee on Criminal
Justice April 6, 2000. Available at www.bop.gov (Public Information
Critiquing the Guidelines Fear of Judging, 78-142 Paul H. Robinson,
The Federal Sentencing Guidelines: Ten Years Later, An Introduction
And Comments, 91 Nw. U. L. Rev. 1231 (1997) M. Tonry, Salvaging the
Sentencing Guidelines in Seven Easy Steps, 10 Fed. Sent. R. 51 (1992)
A Critique of Federal Sentencing
by Erik Luna
A general, opinionated condemnation of the US Sentencing Commission
and the Guidelines. Valuable notes and citations to articles, q.v.
What are we Learning from Multiple Regression Studies of Federal
Sentencing Decisions? by Paul J. Hofer and Kevin Blackwell (Discussion
Draft -- not for citation)
(WORKS CITED in BLACKWELL)
Adams, William P. (1998). An Analysis of Departures From the U.S.
Sentencing Guidelines, 1991-1995. Report prepared for the United
States Sentencing Commission. The Urban Institute, Washington, DC.
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.
Berk, Richard A. & Alec Campbell (1993). Preliminary Data on Race and
Crack Charging Practices in Los Angeles, 6 FED. SENT. REP. 1.
Berlin, Eric P. (1993). The Federal Sentencing Guidelines= Failure to
Eliminate Sentencing Disparity: Governmental Manipulations Before
Arrest, WISC. L. REV. 187-230.
Daly, Kathleen, & Michael Tonry (1997) Gender, Race, and Sentencing in
M. Tonry ed., CRIME AND JUSTICE: A REVIEW OF RESEARCH. Chicago: The
University of Chicago Press.
Demleitner, Nora (1995). Women, Men, Gender, Sex, Congress and the
Guidelines, 8 FEDERAL SENTENCING REPORTER 132.
Engen, Rodney L. & Randy R. Gainey (2000). Modeling the Effects of
Legally Relevant and Extralegal Factors Under Sentencing Guidelines:
The Rules Have Changed, 38 CRIMINOLOGY 1207.
Flaherty, Mary Pat, & William Casey (1996). Judges Hand Blacks Longer
Prison Terms, WASHINGTON POST, 9 Oct., Sec. A, p. 27.
Frank, Laura (1995). Tough Crack Law Targeting Blacks? THE NASHVILLE
Farabee, Lisa M. (1998). Disparate Departures Under the Federal
Sentencing Guidelines: A Tale of Two Districts, 30 CONN. L. REV. 569.
Gelacek, Michael S., Ilene H. Nagel & Barry L. Johnson (1996).
Departures Under the Federal Sentencing Guidelines: An Empirical and
Jurisprudential Analysis, 81 MINN. L. REV. 299-366.
General Accounting Office (August 1992). Sentencing Guidelines:
Central Questions Remain Unanswered.
Heaney, Gerald W. (1991). The Reality of Guidelines Sentencing: No End
to Disparity, 28 AM. CRIM. L. REV. 161-232.
Hebert, Christopher G. (1997). Sentencing Outcomes of Black, Hispanic,
and White Males Convicted under Federal Sentencing Guidelines, 22
CRIM. JUST. REV. 133.
Hofer, Paul J. & Kevin R. Blackwell (1997). Searching for
Discrimination in Federal Sentencing, Paper presented at the annual
meeting of the American Society of Criminology, November, 1997, San
Katzenelson, Susan, & Kyle Conley (1997). Guideline Sentences in the
Ninth Circuit. Report submitted to Ninth Circuit Task Force on Racial,
Religious, and Ethnic Fairness. San Francisco.
Kleck, Gary (1985). Life Support for Ailing Hypotheses: Modes of
Summarizing the Evidence for Racial Discrimination in Sentencing, 9
LAW & HUM. BEHAV. 271.
Maxfield, Linda, & John H. Kramer (1998). Substantial Assistance, An
Empirical Yardstick Gauging Equity in Current Federal Policy and
Practice. Report prepared for the U. S. Sentencing Commission.
McDonald, Douglas C. & Kenneth E. Carlson (1993). Sentencing in the
Federal Courts: Does Race Matter? Department of Justice, Bureau of
Justice Statistics, NCJ-145328. Cambridge, Mass.: Abt Associates.
Meierhoefer, Barbara S. (1992a). The General Effect of Mandatory
Minimum Prison Terms: A Longitudinal Study of Federal Sentences
Imposed. Federal Judicial Center, Washington, DC.
Meierhoefer, Barbara S. (1992b). The Role of Offense and Offender
Characteristics in Federal Sentencing, 66 SO. CAL. L. REV. 370-397.
Mustard, David B. (2001). Racial, Ethnic, and Gender Disparities in
Sentencing: Evidence from the US Federal Courts, 44 J. OF LAW & ECON.
Newton, Phyllis J., Jill Glazer, & Kevin Blackwell (1995).
Individuality and Guidelines, 8 FED. SENT. REP. 3:148.
Steffensmeier, Darrell J. & S. Demuth (2000). Ethnicity and Sentencing
Outcomes in US Federal Courts: Who is Punished More Harshly?, 65 AMER.
SOC. REV. 705-729. U.S. Sentencing Commission (1991). Special Report
to Congress: Mandatory Minimum Penalties in the Federal Criminal
Justice System. Washington, DC U.S. Sentencing Commission (Dec. 1991).
The Federal Sentencing Guidelines: A Report on the Operation of the
Guidelines System and Short-Term Impacts on Disparity in Sentencing,
Use of Incarceration, and Prosecutorial Discretion and Plea
Wilkins, William W., Jr. (1992). Response to Judge Heaney, 29 AM.
CRIM. L. REV. 795-821.
Zatz, Marjorie (1987). The Changing Forms of Racial/Ethnic Biases in
Sentencing, 24 J.RES. CRIME & DELINQ.69-92.
Judging Judicial Discretion:
Legal Factors and Racial Discrimination in Sentencing
University of Maryland
Department of Criminology and Criminal Justice
Anne Morrison Piehl
John F. Kennedy School of Government, Harvard University
and National Bureau of Economic Research
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.
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Jeffery Todd Ulmer
Associate Professor of Sociology and Crime, Law, and Justice
Department of Sociology
The Pennsylvania State University
American Society of Criminology 1996 Abstracts
"Court Communities Under Sentencing Guidelines: Dilemmas of Formal
Rationality and Sentencing Disparity," Vol. 34 (3), August 1996, pp.
Jeffery T. Ulmer (Purdue University) John H. Kramer (Pennsylvania
State University) Efforts to structure sentencing through guidelines
involve a fundamental dilemma for the sociology of law - guidelines
attempt to emphasize formal rationality and uniformity (Savelsberg,
1992) while allowing discretion to tailor sentences to fit situations
and characteristics of individual defenders when courts deem it
warranted (substantive rationality). This exercise of substantive
rationality in sentencing based on "extralegal" criteria deemed
relevant by local court actors risks the kind of unwarranted disparity
that guidelines were intended to reduce. We view local courts as
arenas in which two sets of sentencing standards meet -formal rational
ones articulated by guidelines vs. substantive, extralegal criteria
deemed relevant by local court actors. We use statistical and
quantitative data from Pennsylvania, a state whose courts have
operated under sentencing guidelines for over a decade. Our analysis
examines extralegal differences in three county courts' sentencing
outcomes, and then documents ways in which substantive rational
sentencing criteria are intertwined with defendants' exercise of their
right to trial and their race and gender. [Sentencing]
Stephen Demuth, Ph.D., Assistant Professor of Sociology
YORK DAILY RECORD
The determinants of sentencing in Pennsylvania
FEDERAL SENTENCING REPORTER
Vera Institute of Justice|Projects|Federal Sentencing Reporter
Sentencing in the Federal Courts: Does Race Matter?
"The Transition to Sentencing Guidelines, 1986-90: Summary
This Discussion Paper from the BJS Federal Justice Statistics Program
analyzes the factors that affect sentencing determinations under the
Federal Sentencing Guidelines. The impact of race on sentencing is
evaluated for a variety of Federal offenses including drug
trafficking, bank robbery, weapons offenses, fraud, larceny, and
embezzlement. The effect of mandatory sentencing statutes is also
considered. Abt Associates, Inc. 12/93.
Full 229 page Discussion Paper
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