Discretion and Disparity under Sentencing Guidelines Revisited: The Interrelationship between Structured Sentencing Alternatives and Guideline Decision-making

• Author: Jeffery T. Ulmer,Noah Painter-Davis
• Date: 01 May 2020
• Published date: 01 May 2020
• DOI: 10.1177/0022427819874862
• Subject Matter: Articles

Article

Discretion and

Disparity under

Sentencing Guidelines

Revisited: The

Interrelationship between

Structured Sentencing

Alternatives and Guideline

Decision-making

Noah Painter-Davis

1

and Jeffery T. Ulmer

2

Abstract

Objectives: We argue that the reasons court actors conform to or depart

from sentencing guideline recommendations likely vary depending on

whether the decision involves an alternative sanction or incarceration and

that these reasons may have consequences for ethnoracial disparities in

the sentencing of defendants and how these disparities are understood.

Method: We use recent (2012–2016) Pennsylvania sentencing data to exam-

ine (1) the relationship between defendant race/ethnicity and court actors’

decisions to depart downward and upward from the guidelines and

(2) whether such relationships vary depending on whether they involve

1

Department of Sociology, The University of New Mexico, Albuquerque, NM, USA

2

Department of Sociology and Criminology, The Pennsylvania State University, University

Park, PA, USA

Corresponding Author:

Noah Painter-Davis, Department of Sociology, The University of New Mexico, MSC05 3080,

1915 Roma NE Ste. 1103, Albuquerque, NM 87131, USA.

Email: npf26@unm.edu

Journal of Research in Crime and

Delinquency

2020, Vol. 57(3) 263-293

ªThe Author(s) 2019

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0022427819874862

journals.sagepub.com/home/jrc

an alternative sanction, namely intermediate punishments (IPs). Results: We

find that the association of defendant race/ethnicity with decisions to con-

form to the guidelines or to depart is greatly impacted by whether the

sentence involves an IP. Blacks and, to a lesser extent, Latinos experienced

greater disadvantage in guideline decision-making, whether conformity or

departures, when the sentenceinvolved an IP. Conclusions: Resultssuggest that

the integrationof IP into guideline systems may have(1) mobilized ethnoracial

disparities in sentencing, (2) focused the location of sentencing disparities to

sentences involving IP, and (3) changed the applicability of common inter-

pretations of guideline decisions and disparities in their imposition.

Keywords

sentencing guidelines, sentencing, race/ethnicity, policy, criminal justice

Sentencing guidelines were a major policy intervention designed to increase

uniformity in sentencing and reduce unwarranted disparities. To date, at

least 20 states, the District of Columbia, and the federal system have imple-

mented sentencing guidelines (Frase 2019). Sentencing guidelines structure

judicial decision-making and restrict the possibility of disparity by provid-

ing sentencing recommendations based on offense severity and criminal

history. An abundance of research has shown that while ethnoracial dispa-

rities have declined under sentencing guidelines (King and Light 2019),

disparities remain (Frase 2013; Mitchell 2005; Spohn 2000; Ulmer 2012).

Scholarship has identified judicial departures from guidelines as a pri-

mary locus of remaining ethnoracial disparities in guideline systems (Albo-

netti 1997; Kramer and Steffensmeier 1993; Mustard 2001). Although

judges must consider sentencing guidelines, they can depart from the guide-

line recommendation downward to impose a more lenient sentence or

upward for added severity. This body of research has found that Blacks

and Latinos tend to be disadvantaged at depa rture decisions, being less

likely to receive downward departures to nonincarceration sentences

(e.g., Kramer and Ulmer 1996; Moore and Miethe 1986; Ulmer 1997) or

to shorter incarceration sentences (e.g., Johnson, Ulmer, and Kramer 2008;

Kramer and Ulmer 1996, 2002; Ulmer 1997) and more likely to receive

upward departures that result in longer sentence lengths than Whites.

Over the past three decades, sentencing guideline systems have increas-

ingly adopted alternative sanctions, such as intermediate punishments (IPs),

community-based sentences, and/or rehabilitative programs as diversions

264 Journal of Research in Crime and Delinquency 57(3)