FEDERAL SENTENCING AS A COMPLEX COLLABORATIVE PROCESS: JUDGES, PROSECUTORS, JUDGE–PROSECUTOR DYADS, AND DISPARITY IN SENTENCING

• Date: 01 November 2015
• DOI: http://doi.org/10.1111/1745-9125.12090
• Published date: 01 November 2015

FEDERAL SENTENCING AS A COMPLEX

COLLABORATIVE PROCESS: JUDGES,

PROSECUTORS, JUDGE–PROSECUTOR DYADS,

AND DISPARITY IN SENTENCING∗

BYUNGBAE KIM,1CASSIA SPOHN,1and E. C. HEDBERG2

1School of Criminology and Criminal Justice, Arizona State University

2Sanford School of Social and Family Dynamics, Arizona State University

KEYWORDS: sentencing, disparity, judges, prosecutors

Investigations of how criminal justice actors contribute to variation in sentencing

typically focus on the role played by the judge. We argue that sentencing should be

viewed as a collaborative process involving actors other than the judge and that the role

of the prosecutor is particularly salient. We also contend that the courtroom workgroup

literature has suggested that sentences may vary depending on the particular judge and

prosecutor to whom the case is assigned. By using a unique data set from three U.S.

district courts (N=2,686) that identifies both the judge and the prosecutor handling

the case, we examine how the judge, the prosecutor, and the judge–prosecutor dyad

contribute to variance in offender sentences. We do this by employing cross-classified

random-effects models to estimate the variance components associated with judges,

prosecutors, and judge–prosecutor interactions. The results indicate that disparity at-

tributable to the prosecutor is larger than disparity from the judge. Moreover, the role

that the judge plays is moderated by the prosecutor to whom the case is assigned, as

the judge–prosecutor effect is consistently larger than other random effects across the

models. We also find that results vary by judicial district.

Until now, research examining sentencing decisions typically has focused on the role

played by the judge in determining whether to sentence the offender to prison and, if so,

for how long. A fairly substantial body of research has examined whether the character-

istics of the judge (Spohn, 1990; Welch, Combs, and Gruhl, 1988; Yang, 2014) influence

sentence outcomes and has estimated interjudge disparity in the sentences imposed on

similarly situated offenders (e.g., Anderson, Kling, and Stith, 1999; Anderson and Spohn,

2010; Scott, 2010; Yang, 2014). This focus on the judge is understandable but mislead-

ing. Although the judge clearly plays an important role in the sentencing process—in

many cases, the lead role—others play significant supporting roles. The sentences defen-

dants eventually receive are produced by a collaborative exercise involving legislators,

prosecutors, jurors, probation officials, trial court judges, corrections officials, and possi-

bly appellate court judges (Spohn, 2009). As the National Research Council’s Panel on

Sentencing Research (Blumstein et al., 1983: 41) noted more than three decades ago,

∗Direct correspondence to Byungbae Kim, School of Criminology and Criminal Justice, Arizona

State University, 411 N. Central Avenue, Suite 600, Phoenix, AZ 85004 (e-mail: Byungbae.Kim@

asu.edu).

C2015 American Society of Criminology doi: 10.1111/1745-9125.12090

CRIMINOLOGY Volume 53 Number 4 597–623 2015 597

598 KIM, SPOHN, & HEDBERG

research should encompass “the many participants and decisions that together constitute

‘sentencing.’”

The role played by the prosecutor is particularly salient (Kutateladze, Tymas, and

Crowley, 2014). The prosecutor decides whether to file charges, what charges to file, and

whether to engage in plea bargaining as the case moves toward trial (Piehl and Bushway,

2007; Shermer and Johnson, 2010; Ulmer, Kurlychek, and Kramer, 2007). The prosecu-

tor also may recommend a sentence or, in the federal court system, file a motion for a

downward departure (i.e., a sentence that is less than the minimum sentence called for

by the guidelines) from the guidelines based on the defendant’s substantial assistance in

the prosecution and conviction of other offenders (Spohn and Fornango, 2009). These

decisions have obvious implications for sentencing. If the prosecutor decides not to file

charges, either because of a belief that the defendant is innocent or that the defendant is

guilty but a conviction is unlikely, then the case is closed; the defendant will not be con-

victed or sentenced. If the prosecutor does file charges, then the number and seriousness

of the charges filed will affect the severity of the sentence imposed by the judge. Sentence

severity also may be affected by the prosecutor’s decision to charge the defendant as a

habitual offender, to charge the defendant with an offense that triggers a mandatory min-

imum sentence, to add weapons charges that enhance the sentence for the main offense,

or to charge the defendant with multiple counts of the same offense. Prosecutors play a

particularly important role in the federal system and in states with sentencing guidelines

(Fischman and Schanzenbach, 2012; Yang, 2014). In these systems, the sentence is de-

termined to a large extent by the seriousness of the conviction charge, which, of course,

depends on the charge filed by the prosecutor. In the federal system, if the prosecutor

files a motion for a substantial assistance departure and the motion is granted by the

judge, then the judge has discretion to sentence the offender outside the guidelines and

even to ignore a mandatory minimum sentence that otherwise would be applicable.

The highly discretionary and consequential decisions made by prosecutors clearly affect

sentence severity. They also have the potential to introduce disparity into the sentencing

process (see, for example, Spohn and Fornango, 2009). One of the important goals of

the sentencing reform movement—in which indeterminate sentencing schemes were re-

placed with sentencing guidelines and mandatory minimum sentences—was to increase

uniformity and reduce unwarranted disparity in sentencing by constraining judicial dis-

cretion (Tonry, 1996). These reforms, however, did not restrain prosecutorial discretion.

In fact, several scholars have contended that the reforms did not reduce overall discretion

in sentencing; rather, they simply shifted discretion from the judge at sentencing to the

prosecutor at charging and during plea negotiations (Miethe, 1987; Tonry, 1996). If this is

the case, then the research evaluating the effectiveness of sentencing guidelines and other

reforms by focusing solely on the degree to which the reforms have reduced interjudge

disparity will be misleading. If sentencing is in fact a collaborative process and if pros-

ecutors play a key role in that process, then a finding that there is little if any disparity

attributable to the judge who imposed the sentence does not necessarily mean that sim-

ilarly situated defendants were treated the same. Sentences may vary depending on the

prosecutor to whom the case is assigned.

It is possible that sentences will vary depending on both the prosecutor and the judge

who process the case. Stated differently, sentences may vary depending on the combina-

tion of a particular prosecutor and a particular judge. If this is the case, then testing only

for interjudge or interprosecutor disparity might produce erroneous results regarding the