Displaced Discretion

• Published date: 01 May 2014
• Date: 01 May 2014
• DOI: 10.1177/0887403412469812
• Subject Matter: Articles

469812CJP25310.1177/0887403412469812Cri
minal Justice Policy ReviewVance and Oleson
Article
Criminal Justice Policy Review
2014, Vol. 25(3) 347 –377
Displaced Discretion:
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DOI: 10.1177/0887403412469812
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Guidelines on Prosecutors’
Charge Bargaining in the
District of Columbia
Superior Court
Stephen E. Vance1 and J. C. Oleson2
Abstract
While research indicates that sentencing guidelines systems often reduce sentencing
disparity, few studies have examined whether sentencing guidelines shift discretion
and disparity from judges to prosecutors. Some critics assert that guidelines do shift
judicial discretion to prosecutors, but empirical evidence is scarce. This study seeks to
provide some empirical data on the underresearched topic of hydraulic displacement
of discretion. Using data from the District of Columbia Superior Court, the study
asked whether charge bargaining practices changed after the District of Columbia
adopted a regime of sentencing guidelines. The analyses indicate that some changes in
the plea bargaining process did occur after the guidelines were implemented but that
most were not statistically significant. Policy implications of the displacement thesis
and the current findings are discussed.
Keywords
discretion, displacement, guidelines, prosecutors, sentencing
1Administrative Office of the U.S. Courts, Washington, DC, USA
2 University of Auckland, Auckland, New Zealand
Corresponding Author:
J. C. Oleson, Senior Lecturer in Criminology, Department of Sociology, University of Auckland, Level 9
HSB, 10 Symonds Street, Private Bag 92019, Auckland 1142, New Zealand.
Email: j.oleson@auckland.ac.nz

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348
Criminal Justice Policy Review 25(3)
[T]he more strenuous the attempts to limit judicial discretion in the choice of sentence for
any particular offence category, the more influential becomes prosecutorial discretion.
Bottomley, 1987, pp. 142-143
Throughout most of the 20th century, American judges enjoyed enormous discretion
in sentencing (Stith & Cabranes, 1998). Judges were generally free to impose any
sentence authorized by the relevant penal code, for nearly any reason they wished, and
their sentencing decisions were virtually unreviewable (Oleson, 2011). In 1972, the
U.S. Supreme Court held that “a sentence imposed by a federal district judge, if within
statutory limits, is generally not subject to review” (United States v. Tucker, 1972,
p. 447). Furthermore, because each judge functionally operated as a law unto himself or
herself, identical defendants—appearing before different judges—sometimes received
very different punishments. It was not unheard of for a defendant in one courtroom to
be sentenced to prison, while in the courtroom next door, an identical defendant, con-
victed of the same crime, might receive a sentence of probation (King & Klein, 2004).
In 1972, Judge Marvin E. Frankel criticized this kind of idiosyncratic sentencing dispar-
ity as “judicial lawlessness” (p. 1) and, in Criminal Sentences: Law without Order (1973),
he called for a system of sentencing guidelines that would channel and rationalize judicial
authority. Sentencing guidelines seek to increase uniformity and reduce disparity by
relating the sentences imposed to the characteristics of the offense and offender (Ostrom,
Ostrom, Hanson, & Kleiman, 2008; Spohn, 2002). Guidelines sentencing became enor-
mously popular in the United States beginning in the late 1970s (Pillsbury, 1989).
Many researchers have concluded that sentencing guidelines reduce disparity (see,
for example, Frase, 2000; Gorton & Boies, 1999; Hartley, Maddan, & Spohn, 2006;
Hunt & Connelly, 2005; Kramer & Lubitz, 1985; Miethe & Moore, 1985; Moore &
Miethe, 1986; Stolzenburg & D’Alessio, 1994). Others argue that, while there are
grounds to believe that guidelines reduce disparities, the evaluation evidence is far less
definitive than guidelines proponents suggest (Tonry, 1996). Finally, some suggest
that sentencing guidelines might merely displace discretion and disparity from the
judge at the sentencing phase to the prosecutor at the preconviction stage (see, for
example, Alschuler, 1978; Coffee & Tonry, 1983; Lagoy, Hussey, & Kramer, 1979;
Nagel & Schulhofer, 1992; Savelsberg, 1992; Tonry & Coffee, 1987). McCoy (1984)
has characterized this as a “hydraulic displacement of discretion.”
An often-invoked simile likens the discretion-ridden criminal justice system to
a set of hydraulic brakes. If you push down on one point, the displaced volume
of fluid will exert pressure and “bulge out,” reappearing elsewhere in the
mechanism. Similarly, discretion in the criminal justice system can never be
extinguished; it is simply dislodged and shifted to other system parts (p. 256).
Unfortunately, most studies finding that guidelines have reduced sentencing dispar-
ity have relied only on data compiled at or after the point of conviction and therefore
cannot determine whether a hydraulic displacement of discretion to prosecutors has

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Vance and Oleson
349
occurred. Piehl and Bushway (2007) explain, “[W]hile studies using conviction data
generally find less variation in sentencing outcomes following introduction of guide-
lines, the methodology cannot discern whether discretion is merely displaced to the
charging stage of the process” (p. 109). Because preconviction data about prosecutor’s
charging and charge bargaining is so scarce, there is—to date—little empirical research
evaluating the hydraulic displacement theory (see, for examples of such investiga-
tions, Miethe, 1987; Piehl & Bushway, 2007; Wooldredge & Griffin, 2005).
This lack of evidence is unfortunate from a policy-making perspective, for if dis-
cretion (and attendant disparity) is not reduced under guidelines sentencing, but sim-
ply reallocated upstream, to prosecutors instead of judges, then gains in sentencing
fairness may be eroded by greater disparities at the charging and plea bargaining stages
(Miethe, 1987; Wooldredge & Girffin, 2005). Sentencing guidelines systems may
camouflage and obfuscate sentencing disparity, thereby making it more difficult to
locate and eliminate (Bottomley, 1987; Hewitt & Clear, 1983; Savelsberg, 1992). In
this case, the “cure” of guidelines sentencing might be worse than the “disease” they
were created to alleviate (Uelman, 1991). If the hydraulic displacement theory is cor-
rect, policy makers may consider adjustments1 or alternatives to guidelines to ensure
fairness and parity in sentencing.
Relying on a unique data set containing charging information that was manually
compiled by one of the authors, the current research sheds additional light on the under-
researched issue of hydraulic displacement of discretion. While hydraulic displacement
could manifest in a variety of ways, we followed the approach of other scholars (e.g.,
Miethe, 1987; Wooldredge & Griffin, 2005) and sought evidence of displacement by
looking for increases in the exercise of prosecutorial discretion. We measured the num-
ber of reductions in charges, the number of charges dropped, and the number of
decreased guidelines severity levels. We find that after the District of Columbia imple-
mented a system of voluntary sentencing guidelines in 2004, prosecution behavior
associated with charge bargaining did change, but only modestly. Differences in the
rate of charge bargaining, the extent of charge bargaining, and extralegal effects on
charge bargaining outcomes were—for the most part—not statistically significant.
While there is some evidence that prosecutors made minor charging adjustments to
facilitate the plea bargaining process, hydraulic displacement did not appear to be a
significant phenomenon in the District of Columbia Superior Court. But this analysis
focuses on the rate and nature of charge bargaining, and data limitations may impede
the identification of other forms of displacement. In either case, the current research
underscores the importance of empirical sentencing research that also incorporates the
actions of nonjudge participants in the sentencing process.
Research on the Hydraulic Displacement of Discretion
The notion that justice system officials might hydraulically adapt their behavior to
sentencing reforms is nothing new. Indeed, more than 50 years ago, Ohlin and
Remington (1958) described the “accommodative responses” actors in the justice
system might take when confronted with structural changes:

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Criminal Justice Policy Review 25(3)
The natural tendency, under these circumstances . . . is for the agencies of
criminal justice administration to engage in various kinds of accommodative
responses to a changed sentencing structure, so that they may continue to per-
form their customary tasks (p. 496).
If the judge’s role in adjudication is limited, other actors (defendants and prosecutors
alike) will rethink their respective plea bargaining positions and compensatory changes
will occur accordingly (Tonry, 1996). More than 25 years ago, Hewitt and Clear
(1983) found that Indiana’s shift from an indeterminate sentencing system to a deter-
minate sentencing regime produced corresponding changes in prosecution behavior:
rates of plea bargaining increased from 62.4% of cases under the old (indetermi-
nate) penal code to 78.4% of cases under the new (determinate) penal code (1983,
p. 70, tbl. 13).
Some researchers (e.g., Savelsberg, 1992) have...