Disparity: the normative and empirical failure of the federal guidelines.

• Author: Alschuler, Albert W.

INTRODUCTION I. THE NORMATIVE NATURE OF DISPARITY II. THE DISPARITIES THAT THE GUIDELINES CREATE III. THE DISPARITIES THAT THE GUIDELINES WERE INTENDED TO CORRECT A. Judicial Variation B. Geographic Variation C. Race, Ethnicity, and Gender IV. UNDER THE RADAR: THE SOURCES OF DISPARITY A. Judges B. Defense Attorneys C. Probation Officers D. Law Enforcement Officers E. Prosecutors CONCLUSION INTRODUCTION

When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it. Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper. The luck of the judicial draw appears to determine the sentences offenders serve as much as or more than it did before the Guidelines; the region of the country in which an offender is sentenced now makes a greater difference than it did before the Guidelines; and racial and gender disparities have increased.

Part I of this Article emphasizes that sentencing disparity is a partly normative rather than an entirely empirical concept. It shows how the U.S. Sentencing Commission's initial evaluation of the Guidelines neglected this fact, proclaiming the Guidelines a success simply because judges in the post-Guidelines period came closer to following them than judges did before there were guidelines to apply.

Part II considers the disparities created by the Guidelines. Guidelines principles that appear plausible in some situations may prove nonsensical in others. Moreover, the penalties set by the Sentencing Commission frequently fail to follow a coherent pattern. (1)

Part III focuses on the kinds of disparities the Guidelines were designed to prevent--those resulting from the identity of the sentencing judge, the region of the country in which an offender is sentenced, and the offender's race, ethnicity, or gender. It examines the empirical evidence bearing on these questions, particularly that generated by the Sentencing Commission and its staff. As the Commission's studies show, geographic disparity, the unequal treatment of racial and ethnic groups, and disparities between the sentences of women and men have increased in the Guidelines era. The Commission maintains that the amount of disparity attributable to the identity of the sentencing judge has declined, but this claim is unconvincing. Although the Commission's figures show a small reduction of judge-created disparity in the sentences initially imposed, they indicate no reduction of disparity in the sentences offenders ultimately serve.

Prior to the Guidelines, the United States Parole Commission, an agency with guidelines of its own, determined the release dates of prisoners sentenced by judges throughout America. If this Commission succeeded in reducing interjudge disparity even moderately, it almost certainly achieved greater success than that now claimed for the Federal Sentencing Guidelines. (2) The Guidelines appear to have failed at every job they were designed to do.

Although the Guidelines' failure can be seen in the Commission's statistics, these statistics do no more than skim the surface of the inequalities the Guidelines permit and encourage. Judge-created disparities, for example, are less likely to appear as visible departures from the Guidelines or as differing sentences within authorized Guidelines ranges than as differing applications of Guidelines provisions. Researchers do not treat judicial disagreement about the factual and legal questions and the issues of characterization that arise in Guidelines application as "sentencing disparity." Moreover, the Guidelines have vastly increased the sentencing power of prosecutors while reducing the ability of judges to check this power. The final Part of this Article focuses on sentencing disparities that statistical analysis is unlikely to detect or measure--disparities "under the radar" produced by judges, defense attorneys, probation officers, law enforcement officers, and prosecutors.

1. THE NORMATIVE NATURE OF DISPARITY

   What counts as sentencing disparity is inescapably normative. (3) For many people, the archetype of unequal sentencing is "sentencing by lottery." (4) In a system of punishment by lottery, however, every offender would be treated like every other who drew the same number. When we say that punishment by lottery is unequal or capricious, we mean that this practice is morally incoherent. Drawing the same number is not the kind of "likeness" we believe should matter. Equality requires the consistent application of a comprehensible normative principle or mix of principles to different cases.

   For this reason, evidence that offenders who have committed the same crime receive more uniform sentences under a guidelines system than they would have without them does not establish that the guidelines have reduced disparity. Judges in the pre-guidelines period might not have sought to treat everyone who committed the same crime alike. They might have tried to treat offenders of equal moral culpability alike or offenders of equal dangerousness alike or offenders with equal rehabilitative prospects alike. If these judges consistently applied a coherent principle or mix of principles to their cases, researchers could not fairly conclude that the guidelines had reduced disparity. They could conclude only that the guidelines had applied a new set of sentencing principles.

   The United States Sentencing Commission sometimes has neglected this fact. In a 1991 report mandated by Congress on the first four years of the Sentencing Guidelines' operation, (5) the Commission compared cases in four offense categories in which sentences had been imposed in a pre-Guidelines period to what it regarded as comparable cases that arose after implementation of the Guidelines. (6) The Commission matched cases on the basis of factors the Guidelines deemed relevant to sentencing, such as drug quantity. The Commission then announced that its Guidelines had substantially reduced variation in the sentences judges imposed. The Commission had put the rabbit in the hat, however, by matching cases on the basis of the same factors the Guidelines used to set sentences. The Commission had treated its own view of appropriate sentencing as the measure of equality. (7)

   The Commission's study had other methodological flaws, (8) and after reanalyzing some of the Commission's data, the General Accounting Office rejected the Commission's conclusion that the Guidelines had reduced disparity even in the sentences judges initially imposed. (9)

   Unlike the Commission's later studies, its four-year evaluation considered the sentences offenders were expected to serve as well as the sentences judges imposed. In most of the Commission's comparison groups, it failed to show, even by its own measure, a statistically significant reduction of variation in the sentences offenders could expect to serve. The Parole Commission apparently had reduced disparity in the pre-Guidelines period as effectively as the Guidelines did thereafter. Although judges may not have followed the Sentencing Guidelines before they existed, the Parole Commission came surprisingly close to doing so.

2. THE DISPARITIES THAT THE GUIDELINES CREATE

   Sentencing researchers typically announce that their goal is to study unwarranted disparity and that unwarranted disparity does not include the differences in punishment authorized by legislatures and sentencing commissions. (10) It is of course a truism that legally authorized sentencing considerations are warranted by law (whether or not they are warranted by common sense), and the researchers have no desire to quarrel with legislatures and sentencing commissions about sentencing policy. From the researchers' perspective, the disparities created by sentencing guidelines are warranted simply because the sentencing commission has said they are.

   This perspective, however, cuts off half the action. Adopting the viewpoint of a person of ordinary moral sensibilities rather than of the Sentencing Commission leads quickly to the conclusion that the Sentencing Guidelines have substituted new disparities for old ones. This perspective suggests in fact that the Guidelines have seriously aggravated the problem of disparity. (11) Consider, for example, Chapman v. United States, (12) in which a defendant maintained that guidelines designed to promote equality violated the constitutional requirement of equal protection.

   At the time of the decision in Chapman, both the Federal Guidelines and federal mandatory minimum sentencing statutes determined an LSD dealer's sentence by weighing the "mixture or substance" containing the drug. A "hit" of LSD impregnated in a sugar cube, however, weighs much more than the same hit in a square of blotter paper or a gelatin capsule. Under the Guidelines, a dealer who sold 100 grams of LSD in sugar cubes was sentenced three times more severely than one who sold the same quantity in blotter paper, seven times more severely than one who used gelatin, and nineteen times more severely than one who sold the LSD in pure form. Judge Richard Posner commented, "[T]o base punishment on the weight of the carrier medium makes about as much sense as basing punishment on the weight of the defendant." (13) Judges in the pre-Guidelines period may have been quirky, but determining how many years to imprison someone by weighing sugar cubes was madness. (14) In Chapman, the Supreme Court construed the term "mixture or substance" to include sugar cubes and held that this construction did not call the Guidelines' constitutionality into question. (15)

   Although a post-Chapman amendment to the Sentencing Guidelines has eliminated some of the disparities created by weighing "carrier media," (16) disparities pervade the Guidelines. Mark Osier provides some illustrations:

   Under [the Guidelines], a woman who holds just six grams of crack for her own...