Organizational conformity and punishment: federal court communities and judge-initiated guidelines departures.

• Author: Ulmer, Jeffery T.

The U.S. Sentencing Guidelines represent a uniform set of formal rules that are implemented across a broad range of diverse social contexts. Drawing from neo-institutional theory and kindred perspectives on criminal courts, we argue that the federal courts represent an organizational field in which local influences play a key role in conformity to institutional rules. We use unique survey data from federal judges, aggregated to the district court level and combined with individual-level federal sentencing data, to examine hierarchical models of judicial departures from the Guidelines. Our analysis includes more proximate measures of court community culture than prior research. We find that the collective views of federal judges, including their perceptions of the degree of regulative constraint posed by the Guidelines, as well as the extent to which the Guidelines are normatively and morally legitimate, are intimately related to variation in judicial Guidelines departures across district courts.

TABLE OF CONTENTS INTRODUCTION 254 I. THE U.S. DISTRICT COURT SYSTEM AS AN ORGANIZATIONAL FIELD 257 A. Federal Courts as Local "Court Communities" 260 B. Federal Courts, Guidelines Departures, and Contextual Variation in Punishment 263 II. DATA AND METHODS 266 A. Individual-Level Variables 268 B. District-Level Variables 269 C. Analytic Strategy 270 III. FINDINGS 272 A. Descriptive Analysis 272 B. Downward Departures from Guidelines 274 IV. QUALITATIVE INSIGHTS 279 A. Variation in Normative Constraint 280 B. Variation in Coercive Constraint 281 C. Mimetic Influence: The Uncertainty Reduction Influence of Guidelines 282 CONCLUSION 285 APPENDIX: DISTRICT COMPARISONS, INTER-RATER AGREEMENT, WEIGHTING AND BAR CHARTS 290 INTRODUCTION

Scholarly research on organizational legitimacy, legal authority, and conformity to formalized rules represents an enduring cornerstone of sociological inquiry. At the same time, recent scholarship on the sociology of punishment underscores the broad societal consequences of criminal punishment, (1) in part because the exercise of state-sponsored social control is "shaped by an ensemble of social forces and has a significance and range of effects that reach well beyond the population of criminals." (2) Court actors must continually navigate the delicate balance between formally-structured rules and informal normative expectations. (3) Examining organizational conformity within criminal courts thus provides a unique opportunity to investigate the socio-legal clash of standardized decision-making rules and localized cultural norms across court contexts. (4)

The federal justice system, in particular, is well-suited to an analysis of organizational conformity within the criminal courts. In 1984, Congress passed the Federal Sentencing Reform Act, establishing the United States Sentencing Commission (USSC) and empowering it to promulgate sentencing guidelines to formally structure criminal sentences for all federal offenders. (5) The goals of the federal Guidelines were to reduce unwarranted disparity, to ensure severe and uniform punishments, and to increase rationality and transparency in the federal punishment process. (6) The Guidelines were originally mandatory, recognized as the most rigid and complex sentencing rules ever enacted. (7)

However, in United States v. Booker (8) in 2005, the Supreme Court ruled that the Guidelines would thereafter be advisory. (9) Although federal judges still had to calculate and consider the Guidelines, they were no longer legally mandated to follow them. (10) This change might mean less consistency and uniformity in sentencing between district courts. Recent research evidence, however, suggests that despite the fact that the Guidelines are only advisory now, they continue to shape federal punishments; that is, their legal and normative constraining power remains intact. (11) However, this also raises important questions about local variations in court actor perceptions of the Guidelines, and judicial conformity to them, as local court actors use their discretion to selectively deviate from formal rules and policies imposed from above.

A primary example of organizational deviation occurs when federal judges "depart" by sentencing an offender to a punishment that falls outside the recommendations of the Guidelines. (12) Departures can occur in several ways. Some departures reflect prosecutorial discretion, such as departures for "substantial assistance" to the government in the prosecution of another case, government-sponsored departures that involve binding plea agreements, or pleas where a defense departure motion is not opposed by the government. (13) Other departures are initiated explicitly by judicial discretion. (14) Judges can sentence offenders outside the recommended sentencing ranges in accordance with special sentencing considerations laid out in 18 U.S.C. [section] 3553(a), which became especially relevant after the Guidelines became advisory. (15)

Prior work has examined organizational conformity and departures from sentencing guidelines at both the state and federal level, (16) but none of this work incorporates local court actor perceptions or attitudes towards their institutional environments. Our study incorporates measures of the collective attitudes and perceptions of federal judges towards the Sentencing Guidelines. This research combines insights from organizational sociology with empirical work on the social contexts of criminal punishment. Using unique national survey data from federal judges, which is aggregated to the district level and combined with individual-level sentencing data, we examine organizational forces that affect judicial deviations from the Guidelines. We then supplement these data with material from qualitative interviews with federal judges, prosecutors, defense attorneys, and probation officers to shed additional insight into reasons behind conformity to and deviation from the Guidelines, and how departure decisions are embedded in local court contexts.

1. THE U.S. DISTRICT COURT SYSTEM AS AN ORGANIZATIONAL FIELD

   The federal courts can be seen as an organizational field. (17) Organizational fields are "sets of interacting groups, organizations, and agencies oriented around a common substantive interest." (18) They are bounded by the presence of a common regulatory system or shared normative (systems of formal or informal social norms) or cultural-cognitive frameworks (systems of cultural and cognitive meanings). (19) Fligstein and McAdam refer to these strategic action fields as: "meso level social order[s] where actors (who can be individual or collective) interact with knowledge of one another under a set of common understandings about the purposes of the field, the relationships in the field (including who has power and why), and the field's rules." (20) DiMaggio and Powell identify three types of isomorphism (meaning "similarity of form") (21): coercive, normative, and mimetic. (22) Coercive isomorphism involves forced compliance, normative isomorphism involves acquiescence through established norms, behavioral expectations and perceived legitimacy, and mimetic isomorphism involves conformity through the routine application of shared cultural-cognitive tools that help reduce uncertainty. (23) We view judicial adherence to the Guidelines (and, alternatively, departures (i.e., non-conformity)) from them as an example of the interplay between organizational isomorphism, conformity, and deviation from institutional rules.

   Importantly, foundations of institutional conformity are not mutually exclusive and can be intertwined in complex ways. (24) The federal Guidelines likely produce sentencing uniformity by constraining departures through both coercive and normative influence. For most of their history, a great deal of the Guidelines' influence operated through their regulative and coercive power. Prior to 2005, the Guidelines were mandatory; judges were required to conform to them or justify why a sentence that departed from the Guidelines was warranted due to extraordinary circumstances. (25) Even then, the sentence could be appealed by the prosecution or defense, and the circuit courts had the power to conduct a de novo review of the sentence. (26) Prior to the 2005 Booker decision, the circuit courts gave great deference to the Guidelines and held high standards for departures. (27)

   But when the Guidelines were rendered advisory by Booker, their regulative power to restrict departures was substantially weakened. (28) Yet, from 2005 onward, the large majority of federal sentences continued to conform to the Guidelines, even though they had become merely advisory and did not have the same mandatory, coercive power. (29) This raises the possibility that the Guidelines do not merely influence court actors through regulative constraint but also through informal normative influence. In line with this, Scott suggests that in situations when legal constraint is reduced or ambiguous, the "law is better conceived of as an occasion for sense-making and collective interpretation, relying more on cognitive and normative than coercive elements for its effects." (30) This suggests that the extent to which the advisory Guidelines restrict departures and maintain organizational uniformity across contexts may depend in large part on normative influences (as well as mimetic, uncertainty-reducing influences, to which we return at the end of our analysis). This would occur if the once-mandatory Guidelines have become embedded in organizational sentencing practices as expected norms or established informal rules.

   For example, the Guidelines might have come to be seen as the embodiment of best practice sentencing standards--the product of the U.S. Sentencing Commission's careful research and prescriptions that bear the stamp of congressional approval. To the extent that local court actors conform to the Guidelines because...