Location, Location, Location: The Impact of Guideline Grid Location on the Value of Sentencing Enhancements

• Author: Anne Morrison Piehl,Shawn D. Bushway
• Published date: 01 December 2011
• Date: 01 December 2011
• DOI: http://doi.org/10.1111/j.1740-1461.2011.01227.x

Location, Location, Location: The Impact

of Guideline Grid Location on the Value

of Sentencing Enhancementsjels_1227222..238

Shawn D. Bushway and Anne Morrison Piehl*

A long literature provides empirical estimates of differential treatment (by race and other

factors) in the criminal justice system, taking sentencing rules as given. This article considers

the disparate impact of the rules, rather than their implementation, by providing a quantita-

tive assessment of the Maryland sentencing grid for person offenses using the distribution of

defendants on the grid. The basic insight is that movement along the grid itself (either across

rows or across columns) is nonlinear in sentence lengths (in both absolute magnitudes and

percent terms). As a result, an additional point results in a different increase in the recom-

mended sentence length depending on the other factors that are present. Because the

distribution of factors is not random, factors like weapon use that appear to have equal weight

in the formula developed by policymakers turn out to have very different weights in practice.

I. The Study of Sentencing Guideline Grids

Sentencing guidelines represent one of the many reforms that have been used to provide

more structure to sentencing in the United States (Waldfogel 1998). Legal scholars such as

Miethe and Moore (1985), Tonry (1996), Boerner and Lieb (2001), Frase (2005), and Reitz

(2005) have argued that the presumptive sentencing as practiced in states such as Minne-

sota and Washington has allowed policymakers to implement explicit sentencing goals,

reduce judicial discretion, and reduce disparity relative to other systems. Indeed, the U.S.

Sentencing Commission has shown that racial disparity has increased in federal sentencing

after United States v. Booker, 543 U.S. 220 (2005), the Supreme Court decision that made the

guidelines advisory (U.S. Sentencing Commission 2010).1The research has focused almost

exclusively on whether there still exists unwarranted disparity after the guidelines are

accounted for, and there has been little or no attention on how the guidelines themselves

quantify sentencing practice (Blumstein 1993; Sampson & Lauritsen 1997; Spohn 2000).

The criminology literature uses the term “warranted disparity” as shorthand for the

legitimate operation of the sentencing process; “unwarranted disparity,” then, is any of the

*Address correspondence to Shawn D. Bushway, Associate Professor, School of Criminal Justice, University at Albany,

State University of New York, 135 Western Ave., Albany, NY 12222; email: sbushway@albany.edu. Piehl is Associate

Professor, Department of Economics & Program in Criminal Justice, Rutgers University and Research Associate,

NBER.

1For evidence that disparity decreased when the federal guidelines were introduced, see Anderson et al. (1999).

Journal of Empirical Legal Studies

Volume 8, Issue S1, 222–238, December 2011

222

remaining variation that is correlated with race. In law, “disparate treatment” corresponds

to the latter. The empirical estimation of “unwarranted disparity” or “disparate treatment”

by race (or other demographic characteristics) generally proceeds by f‌irst accounting for

disparity that is due to the differences between racial groups in factors that are considered

to be legitimate grounds for punishment. Over the decades, the estimates of racially

disparate treatment have fallen substantially as improvements were made to the empiri-

cal specif‌ications (Zatz 1987; Albonetti 1998; Engen & Gainey 2000; Mustard 2001). These

improvements generally involved better representations of sentencing law, frequently in

jurisdictions using guidelines to structure sentencing.

But what about the guidelines themselves? The research cited above takes them as

given, as they def‌ine the “warranted” part of variation in sentencing. Another branch of the

literature that studies how guidelines affect sentencing outcomes (Owens 2009; Bushway

et al. 2011; Ulmer etal. 2010) also takes the guidelines as given. However, the research

literature is silent with regard to how sentencing guidelines quantify and translate legitimate

factors into sentences.

There is a growing recognition that this is an important omission, and that the

emphasis on ref‌ining estimates of disparate treatment is misplaced (Engen 2009; Tonry

1996). Michelle Alexander’s (2010) recent book The New Jim Crow argues that mass incar-

ceration in the United States today is a ref‌lection of colorblind criminal justice policies and

practices that disadvantage blacks in profound ways. This “disparate impact” of facially

neutral laws is the focus of our analysis, in which we quantitatively assess the extent and

form of the impact of sentencing enhancements.

At the time of the development of sentencing guidelines, some did express concern

about disparate impact. In particular, Fisher and Kadane (1983) warned that a new guide-

line system would be inherently unfair if it was based on existing practices that were unfair

or biased. And, they presciently predicted, that once rules were set, researchers and

policymakers would tend to take them as given. Instead, Fisher and Kadane (1983) argued

that researchers should try to analyze the guidelines themselves. This has generally not

been done, with few exceptions such as the ongoing discussion about the racially disparate

impact of the federal guidelines regarding crack cocaine.

One reason for this lack of analysis is that it is not obvious how to summarize, much less

analyze, a large set of sentencing rules. In this article, we try to jumpstart what we think should

be an important area of research by providing several measures to perform such analyses. To

make things tangible, we demonstrate the approach using sentencing data from Maryland,

which has voluntary sentencing guidelines and enough data to allow a full exploration of the

issues. The methods are applicable to any rule-based system of sentencing.

After showing the central importance of the sentencing guidelines for sentencing

outcomes, we focus on identifying how the sentencing guidelines map case factors into

sentencing recommendations. Although we rely on the standard sample used in empirical

assessments of sentencing guidelines (those convicted of felonies), we focus not on the

actual sentences imposed, but on the recommended sentences. This allows us to study the

sentence grid itself, using a real distribution of where defendants are likely to be located.

We then identify the impact of each case factor underlying the scores that produce the

recommended sentence. We f‌ind that this mapping is not a simple additive function.

Guideline Grid Location and Sentencing Enhancement 223